ID: nht76-2.37

DATE: 06/29/76

FROM: J. WOMACK FOR F. A. BERNDT -- NHTSA

TO: Nims Sportsman

TITLE: FMVSS INTERPRETATION

TEXT: This will confirm your telephone conversation of June 23, 1976, with Mr. Vinson of this office concerning the preemptive effect of the Federal motor vehicle safety standards with respect to moped turn signals.

The Federal standards are issued pursuant to Title 15, United States Code, Section 1392(a). Judging that a multiplicity of State and Federal vehicle safety standards would constitute a burden on interstate commerce, Congress also enacted Section 1392(d), which prohibits a State from establishing or continuing in effect a vehicle safety standard that differs from a Federal safety standard covering the same aspect of vehicle performance. For example, Federal Motor Vehicle Safety Standard No. 108 contains requirements for motorcycle headlamp performance. Therefore, if a State has a standard on motorcycle headlamp performance it must be identical to the Federal one, and may not impose either greater or lesser requirements. On the other hand, there is no Federal standard for fog lamps, and a State may set whatever requirements it deems appropriate for fog lamps.

How does preemption apply to moped turn signals? Under the Federal standards, a moped is categorized as a "motorcycle" since it is "a motor vehicle . . . having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground." (Title 49, Code of Federal Regulations, Section 571.3(b)). For some purposes a moped is considered a "motor-driven cycle" which is "a motorcycle with a motor that produces 5-brake horsepower or less." Standard No. 108 requires motorcycles manufactured on or after January 1, 1973, to be equipped with turn signal lamps. However, in recognition of the limited ability of low-powered motorcycles, Standard No. 108 was amended effective October 14, 1974, to add paragraph S4.1.1.26 which states that "A motor-driven cycle whose speed attainable in 1 mile is 30 mph or less need not be equipped with turn signal lamps." Pursuant to Section 1392(d) this means that a State can validly require a moped to be equipped with turn signal lamps in only two instances: If the moped were manufactured between January 1, 1973 and October 14, 1974, or if it were manufactured on or after October 14, 1974, and has a top speed exceeding 30 mph.

I hope this clarifies the matter for you.

ID: 86-3.25

TYPE: INTERPRETATION-NHTSA

DATE: 05/16/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Earl J. Ogletree; John Gaski -- Harley Products Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Earl J. Ogletree Mr. John Gaski Harley Products Inc. 904 S Prospect Avenue Park Ridge, IL 60068 Dear Mr. Ogletree and Mr. Gaski: Thank you for your letter of March 28, 1986, asking how our regulations would affect a product you intend to manufacture both as an aftermarket item of motor vehicle equipment and as an item of original equipment on some vehicles imported into this country. You described the product as a sun visor that clips onto a vehicle's regular visor. You further explained that the sun visor has an extension arm that allows the visor to be moved to filter out the sun coming in through the window to the left of the driver, or moved below the original equipment visor or between the two original equipment visors. I hope the following discussion explains how our regulations affect your proposed visor.

Some background information on how Federal motor vehicle safety laws and regulations affect your product may be helpful. 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. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Vehicle Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The agency periodically tests vehicles and equipment items for compliance with the standards, and also investigates alleged safety-related defects. As explained below, installation of your proposed sun visor in new and used vehicles would be affected by our regulations. In addition, any manufacturer of motor vehicle equipment is subject to the requirements of the Vehicle Safety Act concerning the recall and remedy of products with noncompliances or defects related to motor vehicle safety.

We have issued Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, which specifies performance and location requirements for glazing used in vehicles. These requirements include specifications for minimum levels of light transmittance (708 in areas requisite for driving visibility, which includes all windows in passenger cars).

No manufacturer or dealer is permitted to install solar films and other sun screen devices, such as the sun visors described in your letter, in new vehicles without certifying that the vehicle continues to be in compliance with the light transmittance and other requirements of the standard.

After a vehicle is first sold to a consumer, modifications to a vehicle are affected by section 108(a)(2)(A) of the Vehicle Safety Act. That section prohibits commercial businesses from tampering with safety equipment installed on a vehicle in compliance with our standards. Thus, no dealer, manufacturer, repair business or distributor can install a sun screen device for the owner of the vehicle, if the device would cause the window not to meet the requirements of Standard No 205. Violation of section 108(a)(2)(A) can result in Federal civil penalties of up to $1,000 for each violation.

Section 108(a)(2)(A) does not affect vehicle owners, who may themselves alter their vehicles as they please, so long as they adhere to all State requirements. Under Federal law, the owner may install sun screening devices regardless of whether the installation adversely affects the light transmittance. However, the agency encourages vehicle owners not to install devices which could impair their vision and thus adversely affect safety. Individual States govern the operational use of vehicles by their owners and therefore it is within the authority of the States to preclude owners from using sun screens in their vehicles.

If you need further information, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

LEGAL COUNSEL NHTSB U.S. DEPARTMENT OF TRANSPORTATION ROOM 5219 400 7TH STREET S.W. WASHINGTON, D.C. 20590

DEAR SIR/MS:

I AM REQUESTING A RULING OR INFORMATION ON THE U.S. GOVERNMENTS POSITION ON THE LEGALITY OF MANUFACTURING AND SELLING A NEW TYPE OF SUN VISOR* FOR USE ON AUTOMOBILES IN THE AFTER SALE MARKET IN THE U.S. ALSO WE ARE PLANNING TO INCORPORATE THE NEW SUN VISOR AS ORIGINAL EQUIPMENT ON AUTOMOBILES MANUFACTURED IN KOREA WHICH WILL BE SOLD IN THE U.S. SOLD.

* THE NEW SUN VISOR CLIPS ONTO THE AUTOMOBILES' REGULAR VISOR. WHAT MAKES THE NEW SUN VISOR DIFFERENT IS THAT THE TINTED SUN VISOR CAN BE MOVED TO FILTER OUT THE SUN VIA AN EXTENSION ARM THAT HOLDS THE TINTED SUN VISOR WITHOUT MOVING THE REGULAR OR ORIGINAL EQUIPMENT VISOR. WITH THE NEW SUN VISOR ONE CAN FILTER OUT THE SUN AT THE LEFT SIDE DOOR WINDOW, BELOW THE ORIGINAL EQUIPMENT VISOR AND BETWEEN THE TWO ORIGINAL EQUIPMENT VISORS.

PLEASE ADVISE US AS TO WHETHER OR NOT THIS IS A FEDERAL ISSUE OR PROBLEM.

SINCERELY, EARL J. OGLETREE AND JOHN GASKI

ID: nht73-2.5

DATE: 08/09/73

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: Truck Body and Equipment Association Inc.

TITLE: FMVSR INTERPRETATION

TEXT: This is in reply to your letter of July 6, 1973, forwarding to us a letter from Mr. Jim Finley of the Hughes Tool Company. Mr. Finley describes two situations, requesting an opinion on the applicability of NHTSA requirements to each of them.

The first question is whether an earth auger body that is mounted on a crane carrier will conform to the Certification regulations (49 CFR Part 567) if the vehicle exceeds its stated weight ratings when a derrick is mounted on the vehicle but a permanent metal plate is also affixed to the vehicle which states: "The GVWR and GAWR require that the derrick be removed before operating this vehicle upon a public highway."

We do not believe such a label may be used to bring a vehicle into conformity with the Certification regulations. Both "gross vehicle weight rating" and "gross axle weight rating" call for a rating set by the manufacturer, but each is intended to reflect a fully-loaded vehicle or axle condition as a vehicle is likely to be used. Although your letter is not explicit in this regard, if it is a reasonable expectation that the vehicle will be operated on the public highways with the derrick mounted on it (but for the label), even though the derrick is "removable", we would not consider the weight ratings to be consistent with the regulations if they do not take into account the weight of the derrick.

Similarly, the components used in the manufacture of the vehicle should be of sufficient strength to carry the derrick when the vehicle is in motion. On the other hand, if it is unreasonable to expect the derrick to be attached to the crane carrier when the carrier is operated on the highway, the weight ratings need not take into account the weight of the derrick. In neither case, however, would the label you illustrate affect the conformity of the vehicle to the regulations; in the former case the label does not correct the incorrect weight ratings, and in the latter case, the label is unnecessary.

Your second question is whether Federal regulations regarding lighting may be met if the rear lights of a truck-mounted earth auger utilize hinged covers that are intended to protect the lights during boring operations. You state that when the vehicle is operated, the cover is secured to expose the lights. You ask if we recommend the use of a warning sticker in the cab to remind the driver to open the covers.

The use of these covers is not prohibited by the Federal lighting standard, Federal Motor Vehicle Safety Standard No. 108, "Lights, Reflective Devices, and Associated Equipment" (49 CFR 571.108). We think the idea of a warning sticker in the cab is nonetheless a good one.

Yours truly, TRUCK BODY AND EQUIPMENT ASSOCIATION, INC.

July 6, 1973

Richard B. Dyson -- Assistant Chief Counsel, National Highway Traffic Safety Administration, U. S. Department of Transportation

Dear Dick:

I would appreciate your response to the attached two questions submitted by Hughes Tool Company, a member of the Truck Body and Equipment Association, at your earliest convenience.

Best wishes,

Stan Haransky -- Associate Director

HUGHES TOOL COMPANY

June 6, 1973

Stan Haransky, Associate Director -- TBEA

RE: Follow-up on Hot Line Questions

Dear Mr. Haransky:

Question No.1:

Hughes Tool Company designs, builds, and mounts earth auger bodies on crane carriers. With the derrick mounted on the vehicle, the front axle weight and the total vehicle weight on some models exceeds the crane carrier's GAWR and GVWR. Removing the derrick produces weights well within the GAWR and GVWR. On such models we permanently mount a metal plate with the following inscription:

CAUTION

The GVWR and GAWR require that the derrick be removed before operating this vehicle upon a public highway.

If this statement is not followed by the vehicle owner, is he or this company likely to be penalized? If so, what would the penalty be?

Question No.2

Most boring operations with a truck-mounted earth auger are performed at the rear of the carrier. The spoil is removed from the boring tool by rotating it at high speed. Often rocks are thrown at the rear lights with sufficient force to break the lenses. To protect the lights during boring operations, a hinged cover is swung down to conceal the lights. When the vehicle is to be driven on a public road, the cover is secured in the open position to expose the lights.

It is obvious that the driver would be penalized for forgetting to open the covers before driving on a public road, but you can this company be penalized for providing this feature? If so, would you recommend that we place.(Illegible Word) sticker in the cab to remind the driver to open the covers?

Very truly yours,

Jim A Finley

ID: 3010yy

Mr. Norman H. Dankert
221 Decatur Street
Michigan City, IN 46360

Dear Mr. Dankert:

This responds to your letter of May 14, l99l, to Taylor Vinson of this Office, asking for an interpretation of Motor Vehicle Safety Standard No. l08 as it relates to your patent. We appreciate that you included a copy of the patent so that we might have a better understanding of your invention.

As you have explained it, "a sensor that responds to the movement of the accelerator pedal serves to maintain the activation initiated by the brake pedal until the accelerator pedal is depressed, regardless of any speed." In short, when the center highmounted stop lamp is activated by application of the brake pedal, your device ensures that the lamp remains activated when the foot is removed from the brake pedal until such time as the accelerator is again depressed.

The Summary of the Invention in the patent indicates that the basic kit includes a logic circuit unit connecting the accelerator, high mounted stop lamp, and back up lamp (so that when the vehicle is placed in reverse gear, the center lamp, if on, remains on). Optionally, the unit can connect the right and left turn signal lamps (which the Operation of the System in the patent indicates "flashes that 'third' light when either turn signal is operated . . . ."

You believe that your system complies with Standard No. l08, specifically, paragraph S4.5.4 (now S5.5.4) which states "The high-mounted stop lamp on a passenger car shall be activated only upon application of the service brakes." I regret that we must disagree with you. The "only" activation of the center lamp permitted by Standard No. l08 is "upon application of the service brakes." If the service brakes ceased to be applied, the lamp must be deactivated. To allow the center lamp to remain activated when the service brakes are no longer applied would be to allow its activation under conditions other than the application of the service brakes. The stop lamps on the vehicle serve a clearly defined purpose: to indicate the intention of the driver to stop the vehicle, or to diminish its speed, through braking. Paragraph S5.5.4 ensures that the stop lamps will not be used at times other than braking. While use of the stop lamp to indicate a vehicle stopped by the road may be an intuitively attractive idea, we note that there is already a safety system on a vehicle, the hazard warning flasher system, that is specifically intended to be used for this purpose.

We also note that the invention would appear to be prohibited by paragraph S5.1.3 (formerly S4.1.3) of Standard No. l08. This prohibits the installation of any item of motor vehicle equipment that may impair the effectiveness of lighting equipment required by the standard. We deem effectiveness impaired when the intended function of a lamp is lessened, either by outright interference with the lamp's performance, or by the introduction of factors that may create confusion as to the meaning of the signal sent by the lamp. We appreciate the fact that you believe your invention will contribute to motor vehicle safety by indicating the presence of a car that has been put into reverse gear. However, we believe that your invention would impair the effectiveness of the backup lamp. In the reverse mode, the simultaneous activation of the center stop lamp and the backup lamp could create at least momentary confusion as to whether the driver was braking, had braked, or was reversing direction.

The option of the invention that flashes the center lamps with the turn signal lamps is prohibited by paragraph S5.5.10(d) which, in essence, requires all stop lamps to be steady burning in use.

For the foregoing reasons, Standard No. l08 does not allow your invention to be used as original equipment on passenger cars. Nor could it be retrofitted on passenger cars already in use that are equipped with the center lamp. Federal law, in essence, prohibits a manufacturer, distributor, dealer, or motor vehicle repair business, from rendering a safety system wholly or partially noncompliant. As noted above, your invention would have this effect on the center lamp or the backup lamp.

We would also caution against use of your device in conjunction with aftermarket high-mounted stop lamps intended for retrofit on vehicles that were not required by Standard No. l08 to be equipped with them (i.e., passenger cars manufactured before September 1, l985, and multipurpose passenger vehicles, light trucks, and vans manufactured before September 1, l992). In our opinion, the reasons expressed in the last two sentences of the preceding paragraph would continue to apply to the backup lamp system.

Even if permitted under Federal law, the laws of the individual States where an invention is sold may prohibit such a device. We are not in a position to advise on the acceptability of inventions under States laws, and suggest that you write for an opinion to the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

Paul Jackson Rice Chief Counsel ref:VSA#l08 d:6/3/9l

ID: 1982-1.11

TYPE: INTERPRETATION-NHTSA

DATE: 02/09/82

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: United Sidecar Association, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of September 9, 1981, asking several questions about Federal Motor Vehicle Safety Standard No. 108.

You have asked for a clarification of our position on pulsating headlamps and stoplamps commenting that several States have expressed a concern "that a light of variable intensity may be confused by the citizen as an emergency vehicle which is allowed to have flashing headlights."

As you have indicated, paragraph S4.6(a) of Standard No. 108 requires turn signal lamps, hazard warning signal lamps, and school bus warning lamps to flash when activated, while S4.6(b) requires all other lamps to be steady burning. By "steady burning," the standard means a light that is essentially unvarying in intensity. There is, however, an exception in S4.6(b) to the "steady burning" requirement. Means may be provided "to flash headlamps and side marker lamps for signalling purposes." Paragraph S3 of the standard defines "flash" as meaning "a cycle of activation and deactivation of a lamp by automatic means. . . ." In our view, a lamp whose intensity varies from a higher output to a lower output would not be "steady burning" or "flash" within the meaning of those terms and hence would be prohibited. But if complete deactivation occurs, then the lamp "flashes." Installation of flashing lamps under the S4.6(b) exception is not restricted to emergency vehicles. It is permissible under the standard for a motorcycle to have a device which gives the motorcyclist the option of causing the motorcycle headlamp to operate automatically through cycles of activation and deactivation instead of burning steadily.

On the other hand, stop lamps that either flash or are of variable intensity are not allowed by S4.6(b) of Standard No. 108 since they are not steady-burning while in use.

I hope this answers your questions.

SINCERELY,

United Sidecar Association, Inc.

September 9, 1981

Office of the Chief Counsel NHTSA

Gentlemen:

We are quite perplexed regarding the legality or otherwise of certain devices used in lighting circuits of motorcycles. Specifically, we refer to devices to flash or modulate or pulsate the light intensity, whether for headlights, or for stop lights.

As we understand FMVSS 108, all lights installed on a motor vehicle must be STEADY BURNING with the sole exception being turn signal lamps, hazard warning signal lamps, school bus warning lamps and various lamps used by police and emergency vehicles.

It is also our understanding that steady is equivalent to uniform, stable, not shaky, regular, continuous, uniform and constant. In other words, a steady light is one that does not flash, pulsate, or is otherwise discontinuous or variable in intensity.

Many devices are now offered for sale that cause the headlight to vary in intensity. Others are available to pulsate or blink the stop light. The purported purpose of these devices is to attract more attention to the light. And, if so, the user is alleged to be safer. However, several Departments of Public Safety have expressed a concern that a light of variable intensity may be confused by the citizen as an emergency vehicle which is allowed to have flashing headlights.

The citizen will not readily recognize the subtle difference between a pulsating headlight or a modulating headlight or a flashing headlight. When he sees a flashing headlight will he respond as if it were an emergency vehicle or as just another motorcycle?

AS we understand from verbal communications with NHTSA officials, a pulsating headlight is a steady light but a pulsating stop light is not a steady stop light.

This is indeed most perplexing and confusing.

If the pulsating headlight is steady, then it would not appear to require State legislation for its use. If it is not steady then it is prohibited under FMVSS 108. If the pulsating headlight is steady, then it can be used for any application. If not, it can be used for none.

We are anxious to promote the safety and well being of our members. However, we cannot and will not promote any device that appears to be illegal and in contravention to State or Federal regulations.

We urge, with utmost expediency, a full and complete definition of exactly what is and what is not a steady, burning light. Also, what type of devices, if any, have been approved by NHTSA and by the appropriate regulatory bodies for varying the intensity of the headlight and the stop light.

If a device that varies the intensity of the headlight at 3 to 5 Hz is legal, then is a device that varies the headlight at 0.75 to 1.5 Hz legal if some voltage is always applied to the light bulb? Also, what criteria is legal for variable intensity stoplights?

H. A. Kendall, Ph.D.

ID: 1983-1.6

TYPE: INTERPRETATION-NHTSA

DATE: 01/20/83

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Western Waste Industries

TITLE: FMVSS INTERPRETATION

TEXT:

NOA-30

Mr. Kosti Shirvanian President and Chairman of the Board Western Waste Industries P.O. Box 214 Gardena, California 90247

Dear Mr. Shirvanian:

This is in reply to your letter of December 22, 1982, informing us that the California Highway Patrol has advised one of your divisions to remove certain tires from service for failure to "display the Department of Transportation's symbol on both sidewalls in violation of the Federal Motor Vehicle Safety Standard 119 effective March 1, 1975." You have also stated that the tires are acceptable in all other respects.

Paragraph S6.5(a), requiring use of the DOT symbol on tires covered by the standard specifically states, "This symbol may be used on only one sidewall." Therefore, the tires in question would not fail to comply with Standard No. 119 by having the DOT symbol on only one of the two sidewalls.

It there should, in fact, be other items of information missing from the tires which render them technically non-compliant with the standard, we would be pleased to advise you further.

Sincerely,

Frank Berndt Chief Counsel

cc: Ms. Susan Williams Bracy, Williams & Co.

Suite 304 1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

December 22, 1982

Frank A. Berndt, Chief Counsel National Highway Traffic & Safety Administration 400 - 7th Street, S.W. Room 5219 Washington, D.C. 20590

Re: Pneumont Tire - Federal Marketing Problem

Dear Mr. Berndt:

It is my understanding that Susan Williams has spoken to you about the problem that I am having in California in regard to the Federal Motor Vehicle Safety Standard 119. A division of Western Waste Industries, Western Bandag, purchased over 100 Pneumont tires from Interstate Tire Warehouse in Denver, Colorado. These tires were then subsequently sold to Associated Bus Company in Los Angeles. During certification procedures, the Highway Patrol informed Associated Bus that the tires failed to display the Department of Transportation's symbol on both sidewalls in violation of the Federal Motor Vehicle Safety Standard 119 effective March 1, 1975. The Highway Patrol enforcement officer, Mr. David English (213/736-2996) advised Associated Bus and my office that although this Act had been passed March 1, 1975, it was not placed in an information bulletin by the California Highway Patrol Enforcement Services Division until January 27, 1982.

As a result of Mr. English's findings, he has advised Associated Bus Company to remove all of the tires from their fleet which fleet services Los Angeles Unified School District. Mr. English and the Highway Patrol officers who inspected the tires have indicated that there is nothing wrong with the tires themselves except for the fact that they fail to have the DOT symbol displayed on one of the two sidewalls. Specifically, the tires are Pneumont Tires, I.D. #K52LGB2R191 tube-type with no regrooving information. They are rayon tires with a 110 pound weight, 14-ply rated, single-axle, with a maximum load of 6,610 pounds. The air pressure set forth for acceptable driving is 100. The dual weight limitation is 5,950 pounds. Moreover, the DOT symbol is found on each tire on one side of the sidewall.

As the purchaser of the tires, my company is in a position of now having to face the wrath of subsequent purchasers of these tires who are being advised by the California Highway Patrol that these tires are illegal.

We are requesting from your offices a letter addressed to the Department of California Highway Patrol, Enforcement Services Division, with a copy forwarded to Mr. David English of the Los Angeles Highway Patrol office, directing that these specific tires remain in service.

The company feels that given the seven-year lapse between the time the safety standard was effective and the time that the California Highway Patrol advised their offices of the Law, this is a situation over which we as consumers had no control. Moreover, it appears that the Customs Department of the United States failed to enforce this standard and allowed these tires into the country illegally. We are hopeful that this situation can be rectified so that our company is not subject to lawsuits from our purchasers.

Your cooperation in attempting to resolve this situation is greatly appreciated. If we need to provide you any further information, we will be at your service. Thank you again for your time.

Very truly yours,

WESTERN WASTE INDUSTRIES

KOSTI SHIRVANIAN, President and Chairman of the Board

KS/ses

cc: Susan Williams

ID: nht91-4.11

DATE: June 3, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Norman H. Dankert

TITLE: None

ATTACHMT: Attached to letter dated 5-14-91 from Norman H. Dankert to Taylor Vinson (OCC 6047)

TEXT:

This responds to your letter of May 14, 1991, to Taylor Vinson of this Office, asking for an interpretation of Motor Vehicle Safety Standard No. 108 as it relates to your patent. We appreciate that you included a copy of the patent so that we might have a better understanding of your invention.

As you have explained it, "a sensor that responds to the movement of the accelerator pedal serves to maintain the activation initiated by the brake pedal until the accelerator pedal is depressed, regardless of any speed." In short, when the center highmounted stop lamp is activated by application of the brake pedal, your device ensures that the lamp remains activated when the foot is removed from the brake pedal until such time as the accelerator is again depressed.

The Summary of the Invention in the patent indicates that the basic kit includes a logic circuit unit connecting the accelerator, high mounted stop lamp, and back up lamp (so that when the vehicle is placed in reverse gear, the center lamp, if on, remains on). Optionally, the unit can connect the right and left turn signal lamps (which the Operation of the System in the patent indicates "flashes that 'third' light when either turn signal is operated . . . ."

You believe that your system complies with Standard No. 108, specifically, paragraph S4.5.4 (now S5.5.4) which states "The high-mounted stop lamp on a passenger car shall be activated only upon application of the service brakes." I regret that we must disagree with you. The "only" activation of the center lamp permitted by Standard No. 108 is "upon application of the service brakes." If the service brakes ceased to be applied, the lamp must be deactivated. To allow the center lamp to remain activated when the service brakes are no longer applied would be to allow its activation under conditions other than the application of the service brakes. The stop lamps on the vehicle serve a clearly defined purpose: to indicate the intention of the driver to stop the vehicle, or to diminish its speed, through braking. Paragraph S5.5.4 ensures that the stop lamps will not be used at times other than braking. While use of the stop lamp to indicate a vehicle stopped by the road may be an intuitively attractive idea, we note that there is already a safety system on a vehicle, the hazard warning flasher system, that is specifically intended to be used for this purpose.

We also note that the invention would appear to be prohibited by paragraph S5.1.3 (formerly S4.1.3) of Standard No. 108. This prohibits the installation of any item of motor vehicle equipment that may impair the

effectiveness of lighting equipment required by the standard. We deem effectiveness impaired when the intended function of a lamp is lessened, either by outright interference with the lamp's performance, or by the introduction of factors that may create confusion as to the meaning of the signal sent by the lamp. We appreciate the fact that you believe your invention will contribute to motor vehicle safety by indicating the presence of a car that has been put into reverse gear. However, we believe that your invention would impair the effectiveness of the backup lamp. In the reverse mode, the simultaneous activation of the center stop lamp and the backup lamp could create at least momentary confusion as to whether the driver was braking, had braked, or was reversing direction.

The option of the invention that flashes the center lamps with the turn signal lamps is prohibited by paragraph S5.5.10(d) which, in essence, requires all stop lamps to be steady burning in use.

For the foregoing reasons, Standard No. 108 does not allow your invention to be used as original equipment on passenger cars. Nor could it be retrofitted on passenger cars already in use that are equipped with the center lamp. Federal law, in essence, prohibits a manufacturer, distributor, dealer, or motor vehicle repair business, from rendering a safety system wholly or partially noncompliant. As noted above, your invention would have this effect on the center lamp or the backup lamp.

We would also caution against use of your device in conjunction with aftermarket high-mounted stop lamps intended for retrofit on vehicles that were not required by Standard No. 108 to be equipped with them (i.e., passenger cars manufactured before September 1, 1985, and multipurpose passenger vehicles, light trucks, and vans manufactured before September 1, 1992). In our opinion, the reasons expressed in the last two sentences of the preceding paragraph would continue to apply to the backup lamp system.

Even if permitted under Federal law, the laws of the individual States where an invention is sold may prohibit such a device. We are not in a position to advise on the acceptability of inventions under States laws, and suggest that you write for an opinion to the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

ID: GRACIA.2

Wayne F. Plaza, Esq.
Rooks, Pitts and Poust
10 South Wacker Drive
Suite 2300
Chicago, IL 60606

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Plaza:

This is in response to your letter dated September 6, 1996, which objected to my letter of August 27, 1996 to Arthur Bryant of Trial Lawyers for Public Justice. My letter included my interpretation, as Acting Chief Counsel of the National Highway Traffic Safety Administration (NHTSA), of certain provisions of 49 U.S.C. Chapter 301 as they relate to the above-referenced litigation.

One of my functions as Acting Chief Counsel is to issue interpretations of the statutes administered by NHTSA and the regulations adopted by the agency pursuant to those statutes. See 49 CFR 501.8(d); 61 Fed. Reg. 26468 (May 28, 1996). Thus, your assertion that my response to Mr. Bryant's request for an interpretation of the preemptive effect of Federal Motor Vehicle Safety Standard No. 212 under a particular set of facts was "beyond the scope of [my] office" is incorrect. Similarly, while the adoption of Federal motor vehicle safety standards pursuant to 49 U.S.C. 30111 can be analogized to a "legislative" process accompanied by public participation (as required by the Administrative Procedure Act (APA), 5 U.S.C. Part 553), the issuance of interpretations by an agency is not governed by the APA. Rarely if ever does NHTSA or another Federal agency seek public comment on a request for an interpretation like the one that led to my August 27 letter to Mr. Bryant.

The fact that Mr. Bryant's request was related to pending litigation does not affect NHTSA's handling of the request, and certainly imposes no duty upon the agency to seek the views of all parties in that litigation. Many interpretation requests seek the views of the agency on matters being litigated. While it is the policy of the agency not to express any view on the ultimate questions raised in such litigation, we do not refrain from interpreting our statutes and regulations merely because the interpretation could affect a pending lawsuit.

In this case, we promptly sent you, as well as counsel for the plaintiff, a copy of the interpretation, even though that is not required. (I am puzzled by your statement that your copy of the letter was postmarked August 30, 1996; to the best of my knowledge, it was placed in the outgoing mail tray in this office on August 27, the day it was signed.)

Consistent with the policy described above, my letter explicitly declined to take a position on the ultimate questions at issue in this litigation, and noted that the interpretation was necessarily based on the facts presented by Mr. Bryant. Please note, however, that Mr. Bryant enclosed with his request copies of the Motion for Summary Judgment filed by your client, Volvo Europa Truck, N.V.; the plaintiff's memorandum in response to your motion; the Report and Recommendation issued by Magistrate Judge Pallmeyer; Volvo's objections to Magistrate Pallmeyer's Report; and the Memorandum Opinion and Order issued by Judge Plunkett of the Northern District of Illinois. Thus, I believed at the time, and still believe, that I had sufficient awareness of the relevant facts to issue the interpretation.

Of course, to the extent that the interpretation is based upon an incorrect understanding of the relevant facts, such a misunderstanding would decrease the relevance of the interpretation to the pending litigation. However, it would not undermine the validity of the interpretation under the facts as I understood them. If you believe the relevant facts are not accurately or completely set forth in the documents provided by Mr. Bryant, I will be happy to consider whether any such new facts would change my interpretation.

In conclusion, while it is perfectly legitimate for you to disagree with the interpretation set forth in my August 27 letter, that letter was an appropriate exercise of my authority as Acting Chief Counsel. I therefore decline to adopt your request that I "formally withdraw" that letter.

Sincerely,

John Womack

Acting Chief Counsel

cc: Arthur H. Bryant, Esq.

Bruce R. Pfaff, Esq.

ref:VSA

d:10/10/96

ID: 1982-3.8

TYPE: INTERPRETATION-NHTSA

DATE: 10/12/82

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: U. S. Postal Service

TITLE: FMVSS INTERPRETATION

TEXT:

OCT 12, 1982 NOA-30

Mr. Darnley M. Howard Director, Office of Safety and Health United States Postal Service 475 L'Enfant Plaza, S.W. Washington, D.C. 20260

Dear Mr. Howard:

This responds to your August 18 letter to Roger Fairchild of this office, regarding the use of cross-view mirrors on certain Postal Service vehicles. These mirrors are convex and have a non-uniform radius of curvature. They would be used to assist drivers in viewing the area immediately in front of the vehicle.

Federal Motor Vehicle Safety Standard No. 111 sets forth rear view mirror requirements for new motor vehicles. Vehicles such as Postal Service trucks are required to comply with one of three specified alternative sets of requirements for mirror systems. The first alternative requires a plane inside mirror providing a specified field of view and a plane exterior driver side mirror, also providing a specified field of view. The second alternative is the same as the first, except that it permits the interior mirror to have a more narrow field of view as long as the vehicle also uses an exterior mirror on the passenger side. The third alternative requires two plane exterior mirrors of at least 19.5 square inches surface area each, with one placed on the driver's side and the other on the passenger's side of the vehicle.

The agency has taken the position that mirrors used on a vehicle in addition to the required mirrors are not subject to any requirements of FMVSS 111. If the cross-view mirrors you wish to use would supplement mirrors which fully comply with one of the alternatives in the standard, the installation of the cross-view mirrors on new Postal Service trucks is in no way prohibited by our standard.

Further, our requirements do not apply to aftermarket modifications to the original equipment mirror system, when those modifications are performed by the vehicle owner. Modifications to the required system would be deemed unlawful only if done by vehicle manufacturers, distributors, dealers, or motor vehicle repair businesses. Thus, the use of the cross-view mirrors is permissible in any case, so long as one of these designated businesses does not Perform the modification. However, we recommend that the cross-view mirror be used in addition to the original equipment mirrors, and not as a substitute for those mirrors. Based on our experience with non-uniform radius mirrors, these mirrors should not be used when the vehicle is in motion, since the mirror produces an image which can distort distances. Rather, the mirror should be used to detect people in front of the vehicle while the vehicle is stopped.

NHTSA would appreciate the opportunity to review the results of your test program once it is completed. If we can be of assistance to you in evaluating the mirrors, please, feel free to contact us.

Sincerely,

Frank Berndt Chief Counsel

August 18, 1982

Mr. Roger Fairchild Legal Counsel - Federal Motor Vehicle Safety Standard Number 111 National Highway Traffic Safety Administration - Room 5219 U.S. Department of Transportation 400-7th Street, S.W. Washington, D.C. 20590

Dear Mr. Fairchild:

The U.S. Postal Service is considering the testing of an "eyeball" type mirror on certain postal vehicles to provide the driver with a view of the area immediately in front of the vehicle. Currently, for this purpose, we are using convex mirrors, which meet Federal requirements.

The "eyeball" mirror has a nonuniform radius of curvature and, as such, may be in violation of Federal Motor Vehicle Safety Standard Number 111. We understand, however, that the National Highway Traffic Safety Administration (NHTSA) is considering a revision to the standard which would eliminate a design restriction and allow the use of mirrors that do not have a uniform radius of curvature.

Since we wish to fully comply with the NHTSA standards and also evaluate methods that may enhance our efforts to prevent accidents involving children, we are seeking U.S. Department of Transportation approval to allow the Postal Service to conduct a limited test of the "eyeball" type mirror. Approximately 10 postal vehicles would be involved and would include the use of the K-10 "Eyeball" Truck/Bus Mirror, manufactured by K-10 Enterprises Incorporated of Mission, Texas, or an equivalent mirror. Information concerning the K-10 mirror is enclosed for your review and consideration.

The matter has been previously discussed with Mr. Kevin Cavey of the Office of Vehicle Safety Standards, NHTSA. Mr. Cavey was most helpful and suggested we address our inquiry to your office.

Should you need additional information, please feel free to call Mr. Jerry A. Jones, General Manager, Safety Compliance Division, Office of Safety and Health, at 245-4686.

Sincerely,

Darnley M. Howard Director, Office of Safety and Health Employee Relations Department

Enclosure

ID: 2404y

Lewis H. Goldfarb, Esq.
Assistant General Counsel
Chrysler Motors Corporation
l2000 Chrysler Drive
Highland Park, MI 48288-l9l9

Dear Mr. Goldfarb:

This responds to your letter concerning the fuel economy implications of Chrysler's acquisition of American Motors Corporation (AMC). You stated that you were writing to obtain confirmation of Chrysler's "understanding" that fuel economy credits earned by AMC, for exceeding light truck standards in model years l984-86, are now available to Chrysler. You enclosed a memorandum of law explaining your position.

As discussed below, it is our opinion that even if Chrysler is considered the "successor" to AMC under the Motor Vehicle Information and Cost Savings Act, that fact would not result in the conclusion that credits earned, prior to the acquisition, by AMC for exceeding a fuel economy standard could be applied to shortfalls incurred by Chrysler's pre-acquisition fleet, under the three-year carryforward and carryback provisions of the Act and regulations. However, credits earned by AMC could be applied to the pre-acquisition AMC fleet and to the post-acquisition Chrysler/AMC fleet. Also, credits earned by post-acquisition Chrysler/AMC could be applied to the pre-acquisition Chrysler fleet and/or AMC fleet, provided that double counting does not take place. Other issues raised by your letter and legal memorandum are also addressed below.

Section 50l(8) of the Cost Savings Act defines "manufacturer" as follows:

The term "manufacturer" means any person engaged in the business of manufacturing automobiles. The Secretary shall prescribe rules for determining, in cases where more than one person is the manufacturer of an automobile, which person is to be treated as the manufacturer of such automobile for purposes of this part. Such term also includes any predecessor or successor of such a manufacturer to the extent provided under rules which the Secretary shall prescribe.

One issue raised by Chrysler's memorandum is whether Chrysler is the successor of AMC. The term "successor," as used in the definition of "manufacturer" quoted above, is not defined in the statute or in agency regulations. Under general principles of corporate law, the term "successor" ordinarily refers to a corporation which, through amalgamation, consolidation, or other legal succession, becomes invested with the rights and assumes the burdens of another corporation.

Based on our general understanding of Chrysler's acquisition of AMC, we have no reason to doubt your conclusion that Chrysler is the successor of AMC. However, your letter does not provide specific facts concerning the structure of Chrysler's acquisition of AMC or whether Chrysler is invested with the rights and has assumed the burdens of AMC. In the absence of such facts, we are unable to provide an opinion that Chrysler is the successor of AMC. However, for purposes of this letter, it will be assumed that a factual showing can be made that Chrysler is the successor to AMC.

It should be noted that the mere fact that one corporation acquires another corporation does not necessarily mean that the acquiring corporation is a "successor." In the context of the Cost Savings Act, manufacturer A may be wholly owned by manufacturer B, yet still be a manufacturer itself. Under sections 503(a) and (c), however, the automobiles of such related manufacturers would be combined for purposes of calculating average fuel economy.

Another issue raised by Chrysler's memorandum is whether Chrysler and AMC became the same manufacturer for fuel economy purposes for model year l987. According to the memorandum, Chrysler agreed to acquire AMC in the spring of l987, and the transaction closed on August 6, l987. The memorandum concludes that Chrysler and AMC became the same manufacturer for fuel economy purposes in model year l987.

Based on the above facts, it is our opinion that all of Chrysler's and AMC's vehicles should be treated as manufactured by the same manufacturer for model year l987. Fuel economy standards apply to passenger automobiles manufactured by a manufacturer, for a particular model year. See section 502(a)(l). Moreover, average fuel economy is calculated based on the total number of passenger automobiles manufactured in a given model year by a manufacturer. See section 503(a)(l). Under section 503(c), the term "passenger automobiles manufactured by a manufacturer" includes all automobiles manufactured by persons who control, are controlled by, or are under common control with, such manufacturer." Since Chrysler controlled AMC prior to the end of the l987 model year, and since fuel economy standards apply to particular model years as a whole and not to separate parts of a model year, it is our opinion that all of the vehicles produced by both Chrysler and AMC for model year l987 shall be treated as if manufactured by the same manufacturer, i.e., placed into one fleet. Otherwise, one or both of the manufacturers would have two separate CAFE values, pre-acquisition (or pre-control) and post-acquisition (or post-control), for the same model year.

We will now address generally the issue of how credits may be used where one manufacturer is the successor of another. In discussing the issue, we will refer to the following hypothetical example: A and B are both car manufacturers. After consolidation, A is the only surviving corporation and is invested with the rights and assumes the burdens of B. Thus, A is the "successor" of B.

While this example and subsequent discussion is for passenger automobiles, the relevant requirements concerning the earning and availability of credits are essentially identical for passenger automobile standards and light truck standards. Compare section 502(l)(1)(B) and 49 CFR Part 535, and see 45 FR 83233-36, December l8, l980. Thus, our analysis for passenger automobile standards is also relevant to light truck standards.

Section 502(l)(1)(B) states:

Whenever the average fuel economy of the passenger automobiles manufactured by a manufacturer in a particular model year exceeds an applicable average fuel economy standard . . ., such manufacturer shall be entitled to a credit calculated under subparagraph (C), which--

(i) shall be available to be taken into account with respect to the average fuel economy of that manufacturer for any of the three consecutive model years immediately prior to the model year in which such manufacturer exceeds such applicable average fuel economy standard, and

(ii) to the extent that such credit is not so taken into account pursuant to clause (i), shall be available to be taken into account with respect to the average fuel economy of that manufacturer for any of the three consecutive model years immediately following the model year in which such manufacturer exceeds such applicable average fuel economy standard.

We note first that credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer," for any of the three model years before, or after, the model year in which the credits are earned. (Emphasis added.) In the example set forth above, B is no longer a manufacturer under the Cost Savings Act. (Indeed, it is no longer a "person" under section 50l(8).) Thus, in the absence of some provision concerning "successors," any unused credits that B had earned prior to the consolidation would expire unused, since the only manufacturer to which they are available no longer exists. However, for some purposes B continues to exist as part of A, its "successor."

Section 50l(8)'s definition of "manufacturer" does not provide that the term "manufacturer" necessarily includes any precedessor or successor but instead provides that the term does so "to the extent provided under rules which the Secretary shall prescribe." This provision was added by the Automobile Fuel Efficiency Act of l980 as a conforming amendment to the section concerning modification of local content requirements to encourage domestic production of fuel efficient automobiles and not to the section concerning credits. The legislative history does not provide any indication as to why the provision was added, and, to date, NHTSA's administration of the statutory provisions concerning modification of the local content requirements has not turned up a situation for which such rules would be relevant. Should rules be issued under section 50l(8), NHTSA would do so by notice-and-comment rulemaking, taking account of the purposes of that section and the statutory scheme as a whole.

Notwithstanding the absence of rules, we do not believe that Congress intended to require the forfeit of a manufacturer's unused credits in a situation where that manufacturer's substance continues to exist as part of a "successor." Thus, taking account of section 50l(8) and the statutory scheme as a whole, we conclude that, in the example set forth above, B can be deemed as continuing to exist as part of A, from the time of succession.

This conclusion does not, however, permit the general integration of A's and B's credits and shortfalls. Under section 502(l)(1)(B), credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer." Since B's existence as part of A only dates from the time of succession, B is not the same manufacturer as A prior to the time of succession. Thus, any credits earned by B would only be available to offset A's shortfalls for the model years during which B exists as part of A, since it is only at that time that the credits earned by B and applied to A can be considered to be taken into account with respect to the average fuel economy of "that manufacturer." Similarly, the only credits earned by A which would be available to B would be those credits earned during the time when B exists as part of A.

The general integration of A's and B's credits would be inconsistent with the basic structure of section 502(l)(l). Assume, for example, that A and B are separate manufacturers for model years 1 through 6, and A is the successor of B for model year 7. If general integration of credits were permitted, credits earned by B in model year 4 could be applied to A's CAFE for model years l-6, as well as model year 7. However, the structure of section 502(l)(l) does not permit this result. Under paragraph (B)(i), any credits earned by B in model year 4 are available to be carried back with respect to B's CAFE for any of model years l, 2 and 3. To the extent that such credits are not so used, paragraph (B)(ii) makes those credits available to be carried forward with respect to B's CAFE for any of model years 5, 6 and 7. In order for credits earned by B in model year 4 to be applied to A's CAFE for model years l-6, B's credits would first have to be carried forward to model year 7 (the model year where A is B's successor) and then be carried back to model years l-6 (for application to A's CAFE), a process which has no statutory basis.

We will now apply the general analysis discussed above to the particular facts cited in Chrysler's letter. Prior to MY l987, Chrysler and AMC were two separate manufacturers. Chrysler acquired AMC during MY l987, and became the "successor" to AMC at that time. Under section 502(l)(1)(B), credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer." Since AMC's existence as part of Chrysler only dates from MY l987, AMC was not the same manufacturer as Chrysler prior to MY l987. Thus, any credits earned by AMC would only be available to Chrysler to offset CAFE shortfalls incurred in the model years during which AMC exists as part of Chrysler, i.e., MY l987 and thereafter, since it is only at that time that the credits earned by AMC and applied to Chrysler can be considered to be taken into account with respect to the average fuel economy of "that manufacturer." Similarly, the only credits earned by Chrysler which would be available to AMC would be those credits earned during the time when AMC exists as part of Chrysler, i.e., credits earned in MY l987 and thereafter.

Chrysler's memorandum argues that section 502(l) must mean more than that the predecessor's credits can be carried forward and used for the successor firm for l987 and subsequent years. The memorandum states:

"Manufacturer" is a defined term, and it must be read in light of its definition. The only satisfactory reading of this provision is that the reference to "that manufacturer" includes its predecessors and successors--that is, the successor firm may use the credits available to it for calculating its own fuel economy for l987 and subsequent model years or that of its predecessors, including pre-acquisition Chrysler, for the years before l987. On any other reading, the definition of "manufacturer" would be meaningless, and the term would mean different things in different places in the Act.

Chrysler also asserts that its approach would represent a "literal" reading of the Act, and that the agency should not seek to import into the carryover scheme a qualification on the use of credits that Congress did not impose.

We believe that Chrysler's analysis is incorrect since it does not take into account fundamental differences in the timing of the earning of the credits and of Chrysler's becoming a successor. Chrysler was not the successor to AMC during the model years prior to Chrysler's acquisition of AMC in which AMC earned credits. In MY l984, for example, Chrysler and AMC were two separate manufacturers.

In particular, Chrysler is incorrect in concluding that AMC's l984-l986 credits can be applied to Chrysler for model years before l987. Chrysler cannot succeed to rights greater than AMC possessed at the time of the acquisition. As of its acquisition in MY l987, AMC's "rights" as to its MY 1984 credits were to apply them to its own fleet in MY l981-l983 and l985-l986 (since it had no successor in that time period) and to apply them to itself/successor in MY l987.

In construing the Act, we believe that it is appropriate and necessary to read its provisions in the correct temporal context. Thus, we do not believe that the term "manufacturer" means different things in different places in the Act, but instead recognize that corporate relationships, and thus manufacturer identities, may differ for different model years.

Moreover, we believe that Chrysler's memorandum itself construes the term "manufacturer" differently in different parts of the Act. As indicated above, section 502(l)(l)(B) states that "whenever the average fuel economy of the passenger automobiles manufactured by a manufacturer in a particular model year exceeds an applicable average fuel economy standard . . ., such manufacturer shall be entitled to a credit . . . ." Emphasis added. In concluding that Chrysler is entitled to AMC's l984 credits, Chrysler's memorandum apparently reads "manufacturer" to mean "AMC only" the first time it is used in this section, and "AMC and its future successors" the second time it is used.

We also note that Chrysler's current position would lead to absurd results. For example, if the term "manufacturer" were consistently read to include future successors, Chrysler's acquisition of AMC would presumably require calculation of new CAFE values, for the combined Chrysler/AMC fleet, for each model year all the way back to the beginning of the CAFE program. See section 503(a)(l). Moreover, if a company which paid penalties in a particular model year were later acquired by another company which had earned credits in that same model year, but never used the credits, under Chrysler's retroactive successorship interpretation NHTSA could be required to refund those penalties, even if the acquisition took place ten or twenty years later. The Cost Savings Act was designed to encourage manufacturers to improve their CAFE performance; not to allow them to avoid penalties for non-compliance by acquiring companies that had, independently, earned credits in prior years.

Finally, we reject the argument that we are importing into the carryover scheme a qualification on the use of credits that Congress did not impose. Congress expressly chose to limit the ability to use credits to the manufacturer that exceeded an applicable average fuel economy standard and thereby earned the credits. Credits earned by AMC are only available to Chrysler for the model years during which AMC exists as part of Chrysler, since it is only at that time that the credits earned by AMC can be considered as being "taken into account with respect to the average fuel economy" of the manufacturer that earned them.

Sincerely,

Stephen P. Wood Acting Chief Counsel ref:CSA d:4/4/90