ID: aiam3596

Dear Mr. Bettridge: This is in reply to your petition of July 16, 1982, for a temporar exemption from Federal Motor Vehicle Safety Standard No. 301, *Fuel System Integrity*.; You have told us that 'as a seller and installer of truck bodies, w are frequently called upon to install a body on an incomplete vehicle furnished to us by a major manufacturer through his dealer.' Our regulation on vehicles manufactured in two or more stages (49 CFR Part 568) requires the manufacturer of an incomplete vehicle to furnish, with the vehicle, statements with respect to each of the standards which inform the final stage manufacturer of the vehicle's compliance status. With respect to Standard No. 301, each manufacturer should provide you with a statement of specific conditions of final manufacture under which the completed vehicle will conform or, alternatively, a statement that the vehicle when completed will conform if no alterations are made in identified components of the incomplete vehicle.; These statements afford a basis for your certification of complianc with Standard No. 301 without the necessity of testing. We would like to know which of these statements have been provided and why you may believe your manufacturing operations are such that you could not certify compliance with Standard No. 301.; We would also like to make clear that there is no legal requiremen that you crash test a $10,000 vehicle in order to demonstrate compliance. Certification may be based upon computer simulation, mathematical calculation, or engineering studies. Upon reflection you may decide that you have an adequate basis for certification with Standard No. 301.; Until we hear further from you, we shall hold your petition i abeyance.; Sincerely, Frank Berndt, Chief Counsel

ID: aiam3597

Dear Mr. Bettridge: This is in reply to your petition of July 16, 1982, for a temporar exemption from Federal Motor Vehicle Safety Standard No. 301, *Fuel System Integrity*.; You have told us that 'as a seller and installer of truck bodies, w are frequently called upon to install a body on an incomplete vehicle furnished to us by a major manufacturer through his dealer.' Our regulation on vehicles manufactured in two or more stages (49 CFR Part 568) requires the manufacturer of an incomplete vehicle to furnish, with the vehicle, statements with respect to each of the standards which inform the final stage manufacturer of the vehicle's compliance status. With respect to Standard No. 301, each manufacturer should provide you with a statement of specific conditions of final manufacture under which the completed vehicle will conform or, alternatively, a statement that the vehicle when completed will conform if no alterations are made in identified components of the incomplete vehicle.; These statements afford a basis for your certification of complianc with Standard No. 301 without the necessity of testing. We would like to know which of these statements have been provided and why you may believe your manufacturing operations are such that you could not certify compliance with Standard No. 301.; We would also like to make clear that there is no legal requiremen that you crash test a $10,000 vehicle in order to demonstrate compliance. Certification may be based upon computer simulation, mathematical calculation, or engineering studies. Upon reflection you may decide that you have an adequate basis for certification with Standard No. 301.; Until we hear further from you, we shall hold your petition i abeyance.; Sincerely, Frank Berndt, Chief Counsel

ID: aiam4979

"Dear Mr. Friedkin: This responds to your letter asking about th certification of a converted vehicle. You explained that your client leased a 1986 Mercedes and that as part of the lease agreement, Coachbuilders Ltd converted the vehicle from a hardtop to a convertible. In a pending lawsuit, your client is alleging that Coachbuilders did not recertify the vehicle after conversion and that the conversion did not conform with the National Traffic and Motor Vehicle Safety Act ('Safety Act,' 15 U.S.C. 1381). You asked the agency to explain our regulations about conversion and recertification. I am pleased to have this opportunity to do so. The agency's certification regulation requires the manufacturer of a new vehicle to certify that the vehicle conforms to all applicable safety standards in effect on the date of manufacture (567.4 and 567.5). Persons that alter certified vehicles before the first purchase of the vehicle in good faith for purposes other than resale are required to allow the original certification label to remain in place and to add an additional label stating that the vehicle as altered continues to conform to all applicable standards (567.7). Once a vehicle is purchased for purposes other than resale, there is no requirement for an alterer to certify the vehicle's compliance with the standards. The Safety Act, in 114, requires manufacturers and distributors of motor vehicles to certify the vehicles' compliance, but does not extend this requirement to other persons. The Safety Act further provides, in 108(b)(1), that the requirement for a vehicle to comply with all applicable safety standards does not apply after the first purchase for purposes other than resale. In this case, we would consider the purchase by the leasing company to be the first purchase of the vehicle for purposes other than resale. If the modifications were made before that purchase, the modifier would have been required by 567.7 to certify that the altered vehicle continued to conform with the applicable safety standards. If, however, the modifications were made after the leasing company had purchased the vehicle, the modifier would not have been required to make any certification that the modified vehicle continued to conform to all applicable safety standards. If modifications were made after the leasing company purchased the vehicle, the only provision of Federal law that would apply would be section 108(a)(2)(A) of the Safety Act. That section provides in relevant part 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 ... in compliance with an applicable Federal motor vehicle safety standard. In general, this section prohibits any manufacturer, dealer, distributor, or repair shop from removing, disabling, or otherwise 'rendering inoperative' any of the safety systems or devices installed on the vehicle to comply with a safety standard. However, modifications that change a vehicle from one vehicle type to another (e.g., from a hard-top to a convertible) do not violate the 'render inoperative' prohibition, as long as the converted vehicle complies with those safety standards that would have applied if the vehicle had been originally manufactured as the new type. In the case of your client's 1986 Mercedes, there would be no violation of the 'render inoperative' prohibition if the car, as modified, complied with those standards that were applicable to 1986 convertible passenger cars. I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992. Sincerely, Paul Jackson Rice Chief Counsel";

ID: aiam5358

"Dear Mr. Tunick: This responds to your letter concerning low volum CAFE exemptions. I apologize for the delay in our response. You asked whether Bugatti Automobili S.p.A. (Bugatti) and Lotus Cars, Ltd. (Lotus), both of which are controlled by the same holding company, may submit separate low volume CAFE exemption petitions requesting two separate alternative standards. As discussed below, the answer to this question is no. Since any alternative CAFE standard would apply to Bugatti and Lotus together, a single combined petition must be submitted for a single alternative standard. According to your letter and a separate one received from Lotus, General Motors sold Lotus to Bugatti International Holding, SA, in August 1993. That holding company also controls Bugatti, which is planning to enter the U.S. market in the near future. Lotus and Bugatti intend to submit petitions for low volume CAFE exemptions. Moreover, the joint annual production of Bugatti and Lotus is far below the 10,000 vehicles per year eligibility threshold for low volume CAFE exemptions. In a telephone conversation with Edward Glancy of my staff, you indicated that Lotus cars are imported by Lotus USA. You also indicated that Bugatti cars could be imported by Lotus USA, or could be imported by a new company that would be established by Bugatti, e.g., 'Bugatti USA.' Finally, you indicated that Lotus USA is not in a control relationship with any other auto manufacturers. In addressing whether Bugatti and Lotus would be eligible for two separate standards, I will begin by identifying the statutory provisions which are relevant to determining who manufactures the vehicles at issue. Under section 501(8) of the Motor Vehicle Information and Cost Savings Act, '(t)he term 'manufacturer' means any person engaged in the business of manufacturing automobiles.' Under section 501(9), '(t)he term 'manufacture' (except for purposes of section 502(c)) means to produce in the customs territory of the United States, or to import.' Under section 501(10), '(t)he term 'import' means to import into the customs territory of the United States.' Under these sections, the company which imports foreign-built cars into the United States is the manufacturer of those automobiles. Thus, if Lotus USA imported Lotus cars and Bugatti cars, Lotus USA, rather than Bugatti Automobili S.p.A. and Lotus Cars, Ltd., would be considered the manufacturer of those vehicles for CAFE purposes. Since Lotus USA would be the manufacturer of all the vehicles under this scenario, and CAFE standards apply to all passenger automobiles manufactured by a manufacturer, there would be no basis for Bugatti and Lotus to request two separate standards. Instead, a single alternative standard would need to be requested for Lotus USA, which would cover all automobiles imported by that company. This result would not change if Bugatti established a new company, Bugatti USA, for importing cars into the U.S. This is because of the operation of section 503(c), which provides that any reference to 'automobiles manufactured by a manufacturer' is deemed to include all automobiles manufactured by persons who control, are controlled by, or are under common control with, such manufacturer. Since Lotus USA and Bugatti USA would presumably be under common control (traced back to Bugatti International Holding, SA), their fleets would be combined for CAFE purposes. Since many of the arguments you raise in your letter are relevant to this type of scenario, i.e., one in which Lotus and Bugatti cars would be considered to be manufactured by manufacturers within a control relationship, I will assume it for the rest of this letter. As you noted in your letter, NHTSA addressed the issue of how alternative CAFE standards apply to manufacturers within a control relationship in a July 1991 decision concerning low volume exemption petitions submitted by Ferrari. Ferrari and Alfa Romeo were under the common control of Fiat. We stated the following: Because of the operation of section 503(c), Ferrari and Alfa Romeo are in essence the same manufacturer for purposes of CAFE standards. As discussed below, under section 502, the same CAFE standard should apply to both manufacturers together. This is true for both generally applicable standards and alternative standards. Section 502(a), in setting forth the generally applicable standard, specifies a standard for 'passenger automobiles manufactured by any manufacturer.' Section 502(c)(1), in setting forth requirements relating to low volume exemptions, specifies that such exemptions may not be granted unless the Secretary establishes, by rule, alternative average fuel economy standards for 'passenger automobiles manufactured by manufacturers' which receive exemptions under this subsection. Under 503(c)(1), any reference to 'automobiles manufactured by a manufacturer' is deemed to include all automobiles manufactured by persons who control, are controlled by, or are under common control with, such manufacturer. Thus, any CAFE standard which applies to Ferrari should apply to Ferrari and Alfa Romeo together. Therefore, granting Ferrari a low volume exemption in MY 1988 would create a paradox, since Alfa Romeo is indisputably not eligible (given its own worldwide production) for an exemption. A similar paradox would arise in the context of determining compliance with the statute. Under section 503(a), neither manufacturer may have an independent CAFE value. Instead, by operation of section 503(c), they share a CAFE value that is based on the total volume of cars imported by both companies. Thus, a decision to grant an exemption to Ferrari while applying the generally applicable standard to Alfa Romeo would cause compliance enforcement difficulties by compelling the agency to try to compare a combined CAFE value to separate CAFE standards. 56 FR 31461, July 10, 1991. You argued in your letter that, because of factual differences, the Ferrari/Alfa analysis should not be applied to the Bugatti/Lotus situation, and Bugatti and Lotus should be permitted to submit separate low volume CAFE exemption petitions requesting two separate alternative standards. While we agree that there are factual differences, e.g., Ferrari and Alfa Romeo together produced too many vehicles to meet the eligibility threshold while Bugatti and Lotus do not, the situations are identical with respect to the issue of how CAFE standards apply to manufacturers within a control relationship. In particular, since Lotus USA and Bugatti USA would be under common control and because of the operation of section 503(c), the two companies would in essence be the same manufacturer for purposes of CAFE standards. Any alternative standard issued under section 502 would apply to the two companies together. Moreover, neither manufacturer would have an independent CAFE value under section 503(a). Instead, by operation of section 503(c), they would share a CAFE value that is based on the total volume of cars imported by both companies. Therefore, the same CAFE standard would necessarily apply to the two companies together. You raised several other objections in your letter. First, you stated that the CAFE statute provides that 'a manufacturer' may submit a petition for a CAFE exemption, and a joint petition would not fall within this provision. In fact, any one of the related companies (Lotus, Lotus USA, Bugatti, the Bugatti U.S. subsidiary, or the holding company) could submit a petition on behalf of the combined companies. However, any such petition would apply to the combined fleet of both Bugatti USA and Lotus USA. You also stated that combining two small companies together would muddy the question of the best fuel economy that each company is capable of achieving. However, NHTSA would simply assess the 'maximum feasible average fuel economy level' that could be achieved by the combined Bugatti/Lotus fleet. We recognize that this level would be dependent on assumptions about the relative volumes of Bugatti USA and Lotus USA. However, the agency needs to take this factor into account in assessing the capability of any manufacturer which produces vehicles with varying fuel economy values. Finally, you stated that if a joint alternative standard was established, NHTSA would face a difficult enforcement situation in the event of a failure to comply with the standard. You asked how the agency would divide the civil penalties. It is our opinion that Lotus USA and Bugatti USA would be jointly and severally liable for the full amount of the civil penalty, although we would permit the two companies to divide the penalty between themselves. I would like to address two other issues that are raised by the factual situation described in your letter: (1) the immediate eligibility of Bugatti/Lotus given that Lotus was owned by General Motors until August 1993, and (2) the timing of petitions for low volume exemptions. As you know, section 502(c)(1) specifies that low volume exemptions are only available for manufacturers 'who manufactured ... fewer than 10,000 passenger automobiles in the second model year preceding the model year for which the application is made....' (Emphasis added.) During the time that Lotus was owned by General Motors, the combined companies manufactured far more than 10,000 vehicles. It is our opinion that Lotus does not have to wait two years from the date it ceased being in a control relationship with General Motors to be eligible, given the circumstances described above. In particular, we believe that the requirement that a manufacturer have manufactured fewer than 10,000 passenger automobiles in the second model year preceding the model year for which the application is made was intended to address varying production levels (above and below 10,000) and not a situation where a small manufacturer such as Lotus is sold by a large manufacturer. With respect to the timing of petitions, NHTSA's regulations at 49 CFR 525.6, Requirements for petition, state that petitions from low volume manufacturers for alternative fuel economy standards must be 'submitted not later than 24 months before the beginning of the affected model year, unless good cause for later submission is shown.' Clearly, the deadline for a timely submission for model years 1994-96 has passed. On the issue of 'good cause' for a later submission, we note that Lotus was not sold by General Motors until August 1993, and both Lotus and Bugatti requested our opinion concerning submitting a petition within three months of that sale. Under the circumstances, we conclude that, Lotus/Bugatti have, to date, taken reasonable measures to submit a petition in as timely a manner as possible. Therefore, if a petition that meets the requirements of 49 CFR Part 525 is submitted promptly after receipt of this letter, we will consider there to be good cause shown for submitting a late petition for model years 1994-96. I also note that a petition for model year 1997 would be due later this year. I hope this information is helpful. If there are any questions, please contact Dorothy Nakama of my staff at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel";

ID: aiam5643

Dear Mr. Swanger: This responds to your request for an interpretatio of the conspicuity requirements in Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices. According to your letter, a State has requested that you use light-emitting diodes (LEDs) to outline the word 'STOP' on the stop arm blade. That State believes such lighting would increase the sign's conspicuity in certain weather conditions. In your letter and in an October 2, 1995, telephone conversation with Mr. Paul Atelsek of my staff, you expressed your concerns that using LEDs on stop signal arms may cause confusion and asked whether they are permitted. You raised three specific issues relating to viewing angles, legibility from certain distances, and inconsistencies among various jurisdictions. The short answer to your question is that the LEDs could comply with our standard, but only under certain conditions. As you are aware, S5.3 Conspicuity states that 'The stop signal arm shall comply with either S5.3.1 or S5.3.2, or both.' Either method of providing conspicuity is by itself sufficient. I will discuss how the presence of LEDs relates to each of these options and then address your specific questions below. Section S5.3.1 sets forth the requirements of the reflectorization option, stating that ' t he entire surface of both sides of the stop signal arm shall be reflectorized with type III retroreflectorized material . . . .' LEDs would appear on the surface of the arm but could not, as far as we know, qualify as type III retroreflectorized material. Therefore, LEDs are not permissible when compliance depends upon the reflectorization option. Section S5.3.2, which references S6.2, sets forth requirements addressing flashing lamps. Section S6.2 specifies the lamp's color, flash rate, and on- off time. These rather specific requirements reflect the importance of consistency in any signage or labeling requirement. However, we do not see anything intrinsic about LEDs that would preclude their use in stop signal arms with flashing lamps. As long as the familiar flashing lamps are used, we do not believe that interstate confusion would result from the addition of LEDs. Note that we do not consider the use of LEDs as an 'optional' method of compliance with S5.3.2, because the LEDs would not be centered on the vertical centerline at the top and bottom of the stop arm. You expressed concerns in your letter about the narrow viewing angle of LEDs compared to incandescent lights, and about the legibility of the LEDs at a distance. Since the LEDs would be used as a supplement to a standard method of compliance (i.e., flashing lamps), a diminished viewing angle is not important. We assume manufacturer's quality control practices would prevent uneven viewing angles from LED to LED within a given stop arm. While your concerns about the legibility of the word 'STOP' at a distance are important, they do not seem to relate to the presence or absence of the LEDs unless the LEDs reduce the legibility of the word. If you have data indicating that the size or spacing of the letters needs to be increased to achieve greater legibility at a distance, you may petition NHTSA to revise the standard. I want to raise one potential safety issue, in case you receive a request to design an LED-equipped stop signal with flashing lamps. Certain arrangements of LEDs might affect compliance by impairing the effectiveness of the stop signal arm's flashing lamp. Very closely spaced red LEDs could enhance the readability of the letters in poor visibility conditions. On the other hand, red LEDs spaced every few centimeters around the outline of the 15 cm high letters could appear as a random field of lights (like a Christmas tree), distracting the observer and resulting in diminished readability. Similarly, different flash rates or on-off speeds from installed incandescent lamps might detract from readability by creating a distracting double-flash effect, as you suggest. Whether a particular LED-equipped stop signal arm complies with Standard No. 131 is a matter that can be determined only in the context of an enforcement proceeding. I hope this information is helpful. If you have any further questions, please feel free to contact Paul Atelsek at this address or by telephone at (202) 366-2992. Sincerely, Samuel J. Dubbin Chief Counsel;

ID: aiam3091

Dear Senator Eagleton: This responds to your August 23, 1979, letter asking whether brake installed in vehicles in compliance with Standard No. 121, *Air Brake Systems*, can be modified or disconnected.; Your question asks whether these brake systems can be rendere inoperative. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381 *et seq*.) states that --; >>>No manufacturer, distributor, dealer, or motor vehicle repai business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or an item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard....<<<<; Whether a portion of the air brake system can be rendered inoperativ depends, therefore, upon whether that part of the brake system was installed in or on the vehicle in compliance with an applicable safety standard.; The National Highway Traffic Safety Administration (NHTSA) ha concluded that portions of the braking systems installed in compliance with the sections of Standard No. 121 that were invalidated by the court were not installed in compliance with an applicable safety standard. Accordingly, these devices can be disconnected by a commercial facility. In general, this means that the antilock devices installed on trucks and trailers may be disconnected or removed. However, other components of the braking system that were installed in compliance with the remaining applicable sections of the standard may not be rendered inoperative by a commercial facility. Therefore, entire braking systems cannot be removed from trucks and trailers. The NHTSA recommends that any modification of the braking systems be undertaken only after consulting with the manufacturer about the safest configuration of the particular vehicle.; In a related question, you ask who will bear the cost of disconnectin the braking systems, the manufacturer or the purchaser. We believe that the cost of modifying the braking system, depending on the circumstances, is a matter that may be negotiated between the parties.; Sincerely, Joan Claybrook

ID: aiam5250

"Dear Mr. Wennerberg: This responds to your request for a lette explaining the status of Federal regulations applicable to compressed natural gas (CNG) containers for motor vehicles and CNG fueled motor vehicles. As you stated, representatives of the National Highway Traffic Safety Administration (NHTSA), an agency of the United States Department of Transportation, met with the American Gas Association (AGA) on August 16, 1993 to clarify your understanding of this agency's statutory authority with respect to the notice of proposed rulemaking for CNG fuel containers and vehicles using CNG as a fuel. (58 FR 5323, January 21, 1993) This letter, which you plan to forward to State officials interested in CNG fueled motor vehicles, summarizes this information. By way of background information, NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., Safety Act) to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. The Research and Special Programs Administration (RSPA), another agency of the U.S. Department of Transportation, is authorized by Congress to issue standards for containers, including CNG containers, used to transport hazardous materials. RSPA does not have the statutory authority to issue a standard for CNG containers that are used to fuel a motor vehicle. Therefore, if the Federal government were to issue a standard applicable to the manufacture of CNG containers designed to fuel a motor vehicle, NHTSA is the only Federal agency authorized to do so. At present, NHTSA has not issued any standard applicable to CNG containers, CNG fueled vehicles or any regulation dealing with the conversion of vehicles to be equipped with such containers. Therefore, until such time as a standard is issued, a manufacturer is not required to comply with any NHTSA or Department of Transportation safety standard related to CNG fuel systems. Nevertheless, manufacturers of CNG containers and vehicles are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufacturer of the container or vehicle determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. In addition, NHTSA has certain restrictions on vehicle fuel system conversions, depending on who does the conversion and when the work is done. I have enclosed a discussion that sets forth the implications under our present regulations of converting new and used gasoline-powered vehicles to use propane or other gas (such as CNG). That discussion addresses NHTSA's vehicle alterer requirements (49 CFR 567.7) which apply to work on new vehicles, and the Safety Act's 'render inoperative' provision (108(a)(2)(A)), which applies to work on new and used vehicles. Section 108(a)(2)(A) prohibits vehicle manufacturers, distributors, dealers and repair businesses from 'knowingly rendering inoperative, in whole or in part, any device or element of design installed ... in compliance' with any FMVSS. If the agency were to ultimately decide to adopt the proposal, it would be necessary for NHTSA to revisit the 'render inoperative' issues that relate to vehicle conversions. For example, if NHTSA were to issue a safety standard for CNG containers, all containers manufactured after the effective date of the standard would be required to comply with its requirements, whether they are placed on new vehicles or on new or used vehicles converted to CNG fuel. In addition to these current regulatory provisions, as mentioned above, NHTSA issued a proposed rule for CNG containers and vehicles using CNG as a fuel. As we explained at the August 16, 1993 meeting, the agency is currently reviewing the comments to the proposal for CNG containers and vehicles using CNG as a fuel. We expect our next regulatory decision in early 1994. As we explained, the January 1993 notice was a proposal and does not necessarily reflect the precise requirements that will be contained in the final rule, assuming that a rule is issued. If a Standard is issued, each manufacturer would be responsible for certifying that its products meet with the requirements of that standard. This is so because the 'Safety Act' establishes a 'self-certification' process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. NHTSA does not, however, approve or certify any vehicles or items of equipment. NHTSA also investigates safety-related defects in motor vehicles and items of motor vehicle equipment. You should also be aware that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For information about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650. I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosure";

ID: aiam4802

"Dear Mr. Trueman: This responds to your letter asking abou requirements for items to be placed in a truck's air brake system. You are particularly interested in requirements that would apply to two new products you are developing. According to your letter, the products will 'have the BX-l00 Brake Equalizer integrally combined with a Quick Release valve and another with a Relay valve.' By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable standards. The following represents our opinion based on the facts provided in your letter. NHTSA does not have any specific regulations covering brake equalizers, quick release valves, or relay valves. However, since these devices are tied into a vehicle's air brake system, they could affect a vehicle's compliance with Federal Motor Vehicle Safety Standard No. l2l, Air Brake Systems. That standard applies to almost all new trucks, buses, and trailers equipped with air brake systems. If one of your devices is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards. If the device is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. If the device is installed on a used vehicle by a business such as a garage, the installer would not be required to attach a certification label. However, it would have to make sure that it did not knowingly render inoperative, in whole or 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. You should also be aware of the requirements of Federal Motor Vehicle Safety Standard No. l06, Brake Hoses, which specifies requirements for motor vehicle brake hose, brake hose assemblies, and brake hose end fittings. That standard applies to new motor vehicle equipment as well as to new motor vehicles. You should check to see if any parts of your brake devices are subject to the requirements of Standard No. l06. I am enclosing a copy of an information sheet which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers. I regret that we are unable to provide information concerning regulations other than those of NHTSA which may apply to your products. You may wish to contact the Federal Highway Administration's Office of Motor Carrier Standards concerning whether any of its regulations are relevant to your products. You may also wish to contact appropriate State authorities, and/or a local attorney, for advice about state and local regulations. Sincerely, Paul Jackson Rice Chief Counsel Enclosure";

ID: 571.108 -- AMA -- Schaye--front color changing light

Paul Schaye
CEO, Pedestrian Safety Solutions
245 Park Avenue, 41st Floor
New York, NY 10167

Dear Mr. Schaye:

This responds to your letter requesting an interpretation of whether your auxiliary lamp, the Auto Motion Alert (“your product”), is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment.  Because your product would be installed as aftermarket equipment, not as original equipment, and would not replace original equipment, and because FMVSS No. 108 applies only to equipment installed as original equipment or that replaces original equipment, we have interpreted your request as asking whether the installation of your product is permissible under the “make inoperative” provision of the National Traffic and Motor Vehicle Safety Act of 1966 (the Safety Act).  The Safety Act prohibits most automotive businesses from installing aftermarket lighting equipment if doing so would take the vehicle out of compliance with FMVSS No. 108.  For auxiliary lamps, the primary restriction imposed by FMVSS No. 108 is that the lamps cannot impair the effectiveness of a vehicle’s required lighting equipment.

We have tentatively concluded that your product is unlikely to impair the effectiveness of required lighting equipment, and is therefore unlikely to violate the “make inoperative” provision.  However, we wish to emphasize that the existence of impairment would depend on the context in which your lamp is used, and thus must be determined on a case-by-case basis.  It is the responsibility of the business installing your product to determine whether doing so constitutes a “make inoperative” violation. We explain our reasoning below.

Description of your product
You describe your product as a lamp that is designed to be installed above a vehicle’s front license plate using the two top mounting screws.  You state that the purpose of installing the lamps on a vehicle is to communicate to road users ahead of the vehicle whether the vehicle is decelerating, accelerating, or maintaining a constant speed. You state that your product consists of a strip of amber and white LEDs, although you do not provide the exact photometric intensity.  Either the white or amber LEDs are activated, depending upon the underlying condition.  You state that the white LEDs are activated and steadily burn while the vehicle is accelerating or travelling at a constant speed, and that the amber LEDs are activated and steadily burn while the vehicle is decelerating or stopped.  The LEDs are actuated by a microcontroller that detects the vehicle’s acceleration using internal accelerometers.  We also understand, based on our communications with you, that the brightness of the LEDs, the threshold levels of acceleration or deceleration activating the LEDs can be controlled through software, although it is our understanding that the product will be sold as a sealed unit that is not adjustable by the end user. You state that, although the LEDs activate independently of other vehicle systems (including the braking system), your product is powered by either a direct connection to the vehicle’s battery, or a 12-volt DC wire supply that is live when the vehicle is turned on.  The exterior housing consists of a weather-resistant polymer enclosure with gasket type seal. 

Applicable Requirements
Because you state that you intend to sell your product aftermarket, the primary potential restriction on its installation is the Safety Act’s “make inoperative” provision. 49 U.S.C.           § 30122.  The “make inoperative” provision states that manufacturers, distributors, dealers, rental companies and motor vehicle repair businesses may not “knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard” promulgated under the Safety Act.  This means that the businesses subject to the “make inoperative” provision would be prohibited from installing your product on a vehicle if doing so would take the vehicle out of compliance with any FMVSS.  The “make inoperative” provision does not apply vehicle owners, and these owners are not precluded from modifying their vehicle by NHTSA’s statutes or regulations.  State and local laws, however, may impact whether an owner may use a vehicle they have modified in a particular jurisdiction.

NHTSA considers the installation of an aftermarket lamp to violate the “make inoperative” provision if the installation of the same lamp as original equipment would violate FMVSS No. 108.[1]  As a non-required (“auxiliary”) lamp, your product is not required to meet any of the performance requirements in FMVSS No. 108 that it would need to meet if it were installed as original equipment.[2]  However, your product would be prohibited under FMVSS No. 108 (and thus, would violate the “make inoperative” provision) if it would “impair[] the effectiveness of lighting equipment required by this standard.” FMVSS No. 108, S6.2.1.    

Because the existence of impairment is, in part, a function of the context in which an auxiliary lamp is used, impairment must be determined on a case-by-case basis.  If a business subject to the “make inoperative” provision installs an aftermarket auxiliary lamp, that entity is responsible for determining whether doing so causes impairment.  If NHTSA determines that a business to which the “make inoperative” provision applies has impaired the effectiveness of required lamps, that business would be subject to a fine of up to $22,329 per violation.[3]  

Discussion
Based on the information you provided in your interpretation request, we have tentatively concluded that your product, if configured and installed in conformance with the restrictions described in letter, is unlikely to impair the effectiveness of a vehicle’s required lighting, and its installation on a vehicle would be unlikely to constitute a “make inoperative” violation.  There are four aspects of auxiliary lamps that are relevant to impairment: brightness (i.e., photometric intensity), color, location, and activation pattern.  What follows is a brief explanation of NHTSA’s safety concerns for each of these characteristics, along with examples of instances in which the agency would consider an auxiliary lamp to violate the impairment prohibition.  It should be noted that determining whether an auxiliary lamp impairs the effectiveness of required lamps involves a holistic assessment of the context in which the auxiliary lamps are used, and the examples provided are not exhaustive.  Thus, although this letter discusses these four characteristics separately, they should not be considered in isolation, nor should they be considered an exhaustive list of all the considerations that should be taken into account when making an impairment determination.

Brightness (Photometric Intensity)
NHTSA interprets the impairment provision to prohibit auxiliary lamps that are so bright as to obscure or distract from a vehicle’s required lamps.  For example, NHTSA has in the past stated that auxiliary lamps that were so bright as to “mask” adjacent required turning signal lamps would be prohibited due to impairment.[4]   While you do not state the precise brightness of your product, you state that its brightness “is limited and so would not impair or mask the vehicle’s headlamps or turn signals.”  Although the extent to which your product would interfere with a vehicle’s required lighting may vary depending on the design and performance of a particular vehicle’s required lamps, we do not believe your product would impair the effectiveness of a vehicle’s required lamps on the basis of brightness if its photometric intensity is sufficiently limited such that your product’s LEDs are noticeably dimmer than the vehicle’s required head lamps and front turn signal lamps.

Color
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are colors the agency believes are likely to cause confusion to other road users.  For auxiliary lamps located on the front of the vehicle, colors that could cause confusion include red (which could be confused for a tail lamp), green (which could be confused for a traffic signal), and blue (which could be confused for a law enforcement vehicle).  By contrast, we have consistently said that amber and white lamps are permissible on the front of the vehicle.[5]  Because your product illuminates as either amber or white, depending on the underlying condition, we do not believe your product would impair a vehicle’s required lamps on the basis of color.

Location
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are mounted in locations that cause them to interfere with the ability of a vehicle’s required lamps to achieve their purpose. For example, NHTSA has stated in the past that auxiliary lamps placed too close to FMVSS No. 108-compliant identification lamps would be prohibited because they may confuse other road users.[6]  The agency has long maintained that highway traffic safety is enhanced by the familiarity of drivers with established lighting schemes, which facilitates their ability to instantly recognize the meaning the lamps convey and respond accordingly. Therefore, any auxiliary lighting on the front of a vehicle must be located such that it would not interfere or be confused with other required lamps.  Your product is designed to be no wider than a license plate.  In the case where a license plate holder is mounted at the centerline of the vehicle at a lower mounting height than the vehicle’s required lamps, we think your product would, in most cases, be unlikely to interfere with the required lamps’ ability to achieve their function based on proximity.  However, we note that if a vehicle’s front license plate were located somewhere other than the centerline of the front bumper, and especially if it were located near a vehicle’s required lamps, it would be likely that the installation of your product on the front license plate holder would cause impairment.  Our determination in this letter that your product would be unlikely to impair the effectiveness of required lamps on the basis of mounting location assumes that your product is mounted on front centerline of the vehicle.  If your product were mounted somewhere other than the front centerline of the vehicle, we believe that it would be more likely to impair the effectiveness of the vehicle’s required lamps.

Activation Pattern
NHTSA interprets FMVSS No. 108 to require that all auxiliary lamps be “steady burning,” with the sole exception being auxiliary lamps that supplement required lamps that flash, such as turn signals.[7]  While this requirement has been relatively straight-forward to apply in the past, the introduction of new, programable lighting devices (such as your product) that are intended to communicate driver intent to other road users, has convinced the agency that it is necessary to clarify the meaning of “steady burning.”  To this end, we are clarifying here that the requirement that auxiliary lamps be steady burning does not mean that an auxiliary lamp is prohibited from being activated or deactivated automatically.  Rather, it means that the lamp must be steady burning when activated, and that the event that triggers its activation or deactivation (in this case, the vehicle’s rate of acceleration or deceleration exceeding a certain minimum threshold) cannot be so frequent or random that the lamp would distract or confuse other road users.  For example, a lamp that activated and deactivated on an extremely short time interval due to sensitivity to slight changes in the underlying conditions, would not be considered steady-burning.[8]  More traditional examples of lamps that are not steady-burning include, but are not limited to, strobes and turn signals.  By contrast, an auxiliary lamp that gradually changes in intensity based on ambient lighting conditions may be considered steady burning.[9] 

We have determined that your product would likely be considered steady burning because the event that triggers the activation of the LEDs—the deceleration of the vehicle—is likely not something that occurs so frequently or randomly that it would cause your product to appear to flash, which could confuse or distract other road users.  We note that this determination rests on the assumption that your product’s accelerometer is calibrated not to be overly sensitive to small changes in acceleration.    

We acknowledge that this interpretation supersedes some of our prior, more restrictive interpretations of the concept of “impairment.”  In particular, this letter specifically supersedes our previous interpretation concluding that all auxiliary lamps used to communicate “non-standard signals” (i.e., information other than what is communicated by required lamps) to other drivers would categorically impair the effectiveness of a vehicle’s required lamps.[10]  We reiterate, however, that auxiliary lamps may not be used to communicate non-standard signals (or, in fact, any signals) if doing so impairs the effectiveness of required lighting. 

Other Considerations
You should be aware that, even if your product is permissible under FMVSS No. 108 and the “make inoperative” provision, it is possible that State and local laws or restrictions may apply to your product. You may wish to consult the State and local transportation authorities in the areas you intend to market your product to make sure it is permissible under these laws. 

Finally, regardless of whether your product is subject to the restrictions of FMVSS No. 108 or the “make inoperative” provision, please be aware that if you or this agency finds your product to contain a safety-related defect after you market the product, you are responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118-30120.

If you have further questions, please contact Daniel Koblenz of my staff at 202-366-2992.

Sincerely,

Jonathan C. Morrison
Chief Counsel

Dated: 9/9/19

Ref: FMVSS No. 108

[1] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[2] We note that auxiliary lamps that use plastic optical materials must comply with S14.1.2, and are subject to various other minor restrictions that are not relevant here.

[3] See 49 CFR part 578.

[4] E.g., Letter to Mark Wallach (Oct. 17, 2006), available at https://isearch.nhtsa.gov/files/Wallach.3.htm.

[5] E.g., Letter to Anthony M. Cooke (Oct. 19, 2006), available at https://isearch.nhtsa.gov/files/Legg1.htm.

[6] E.g., Letter to [REDACTED] (Jan. 21, 2004), available at https://isearch.nhtsa.gov/files/GF007705.html.

[7] Prior to 2007, FMVSS No. 108 included an explicit requirement that, with the exception of certain types of required lamps (e.g., turn signal lamps), all lamps on a vehicle, including auxiliary lamps, must be steady burning.  In 2007, NHTSA implemented an administrative reorganization of FMVSS No. 108 which, among other things, converted the blanket “steady burning” requirement (and its exceptions) into individual activation requirements for each type of required lamp.  See 72 FR 68234 (Dec. 4, 2007).  Although the reorganized rule no longer includes a blanket “steady burning” requirement, NHTSA stated in the preamble to the reorganized rule that its “rewrite of FMVSS No. 108 is considered administrative in nature because the standard’s existing requirements and obligations are not being increased, decreased, or substantively modified.” Moreover, NHTSA continues to believe that flashing auxiliary lamps would impair the effectiveness of required lamps by distracting or confusing other road users.

[8] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[9] E.g., Letter to Ian Goldstein (July 21, 1998), available at https://isearch.nhtsa.gov/files/18164.ztv.html.

[10] E.g., Letter to Kerry Legg (Feb. 21, 2008), available at https://isearch.nhtsa.gov/files/07-001583as.htm.

ID: aiam5301

"Dear Mr. Lynch: This responds to your inquiry about how Federal safet standards would apply to the 'AeroCon System,' a new product being developed by your firm. You state that this product is an air deflector/fairing that provides aerodynamic braking. According to your letter, 'By opening doors on the fairing unit, the full force of the relative wind speed is redirected to strike the trailer face, greatly decreasing stopping distance. The pneumatic power required to actuate the system's doors utilizes the auxiliary air system of the tractor.' (emphasis in original) I am pleased to have this opportunity to explain our regulations. I am also enclosing a copy of a fact sheet titled 'Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment.' By way of background information, the National Highway Traffic Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable standards. The following represents our opinion based on the facts provided in your letter. NHTSA does not have any specific regulations about air deflectors or fairings. However, since the AeroCon System 'utilizes the auxiliary air system,' it could affect a vehicle's compliance with Standard No. 121, Air Brake Systems. That standard applies to almost all new trucks, buses, and trailers equipped with air brake systems. If the AeroCon System is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards, including Standard No. 121. (See 15 U.S.C. 1397(a)(1) and 49 CFR Part 567.) If the device is added to a previously certified new motor vehicle prior to its first consumer purchase, then the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. 49 CFR 567.7. If the device is installed on a used vehicle by a manufacturer, distributor, dealer, or motor vehicle repair business, then the installer would not be required to attach a certification label. However, it would have to make sure that it did not 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. 15 U.S.C. 1397(a)(2)(A). You may wish to determine whether the AeroCon System adversely affects compliance with any of the requirements in Standard No. 121. In addition, under the Safety Act, the AeroCon System would be considered an item of motor vehicle equipment. Your company, as a manufacturer of motor vehicle equipment, would be subject to the requirements in 151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. In the event that NHTSA or the product's manufacturer determines that a product that is an item of motor vehicle equipment contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosure";