Mr. Guy Meulders

Homologatiedienst

Van Hool N.V.

Bernard Van Hoolstraat 58

Lier-Koningshooikt

BELGIUM B 2500

Dear Mr. Meulders:

This responds to your request for an interpretation of National Highway Traffic Safety Administration (NHTSA) regulations that may apply to a ski-box that you wish to place at the back of motorcoach buses. You state that the total length of the bus with the ski-box exceeds the authorised 45 maximum length in the US, if indeed the depth of the ski-box is also added to the length of the vehicle.

Nothing in NHTSAs regulations limits the length of buses to 45 feet or any other length. However, the Federal Highway Administration (FHWA), which is a separate Administration in the U.S. Department of Transportation, has a regulation that may be relevant to your question.

The FHWA has provided the following information. Federal regulations related to commercial bus length, issued by the FHWA at 23 CFR 658.13(d), prohibit States from imposing a limit of less than 45 feet on the length of any bus on the National Network, which includes the Interstate System of highways and other Federally designated routes as specified in Appendix A to 23 CFR Part 658.  Outside of this Federal limitation, the maximum length limitations for buses are established by the individual State governments.

You may also wish to check the information at the following FHWA web addresses:

The overall FHWA internet page on Vehicle Size and Weight (which contains FHWA contact information) is at:

http://www.ops.fhwa.dot.gov/freight/size_weight.htm

The FHWA Freight Management and Operations internet page on Federal Vehicle Size Regulation (which contains a downloadable pamphlet) is at:

http://www.ops.fhwa.dot.gov/freight/publications/size_regs_final_rpt/index.htm

For further information about FHWAs regulations in this area, the contact person is:

Michael P. Onder, Team Leader

Truck Size and Weight

Office of Freight Management and Operations

Federal Highway Administration

telephone: +202-366-2639

facsimile: +202-366-3225

e-mail: michael.onder@dot.gov

In addition, you may wish to consult the laws of the individual States.

I hope this information is helpful. If you have any further questions, about NHTSAs regulations, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

cc: Michael P. Onder, Team Leader

Truck Size and Weight

Office of Freight Management and Operations

Federal Highway Administration

ref:217

d.4/15/08

Mr. Kiminori Hyodo

Deputy General Manager, Regulation & Certification

Koito Manufacturing Co., Ltd.

4-8-3, Takanawa

Minato-Ku Tokyo

Japan

Dear Mr. Hyodo:

This responds to your letter, in which you ask about the relative location of the lower and upper beam light sources under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Specifically, you ask if the optical axis, as defined by the manufacturer, can be used to determine the relative location of the lower beam light source to that of the upper beam headlamp. As discussed below, our answer is yes. It is our opinion that for purposes of visual/optically aimed headlamps, the point where the optical axis intersects the lens of the headlamp (as determined by the manufacturer) is the reference point used for purposes of determining the relative location of the beams.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

The relative locations of lower and upper beam headlamps is governed under paragraphs S7.4(b) and S7.5(d)(2) of FMVSS No. 108. These paragraphs read, respectively:

S7.4 * * *

(b) The lower and upper beams shall be provided only as follows where each headlamp contains two light sources:

(1)                           The lower beam shall be provided either by the most outboard light source (or the uppermost if arranged vertically), or by all light sources.

(2)                           The upper beam shall be provided either by the most inboard light source (or the lowermost if arranged vertically), or by all light sources.

* * * *

S7.5(d) For a headlamp equipped with dual filament replaceable light sources, the following requirements apply:

* * * *

(2) The lower and upper beams of a headlamp system consisting of two lamps, each containing either one or two replaceable light sources, shall be provided as follows:

(i) The lower beam shall be provided in one of the following ways:

(A) By the outboard light source (or upper one if arranged vertically) designed to conform to:

(1) The lower beam requirements of Figure 27-1 or Figure 27-2, or Figure 17-1 or Figure 17-2, if the light sources in the headlamp system are any combination of dual filament replaceable light sources other than Type HB2; or

(2) The lower beam requirements of Figure 17-1 or Figure 17-2, if the light sources are Type HB2, or any dual filament replaceable light sources that include Type HB2; or

(B) By both light sources in the headlamp, designed to conform to the lower beam requirements specified above.

(ii) The upper beam shall be provided in one of the following ways:

(A) By the inboard light source (or the lower one if arranged vertically) designed to conform to:

(1) The upper beam requirements of Figure 27-1 or Figure 27-2, or Figure 17-1 or Figure 17-2, if the light sources in the headlamp system are any combination of dual filament replaceable light sources other than Type HB2; or

(2) The upper beam requirements of Figure 17-1 or Figure 17-2, if the light sources are Type HB2, or any dual filament replaceable light sources that include Type HB2; or

(B) By both light sources in the headlamp, designed to conform to the upper beam requirements specified above.

We note that the specifications described in paragraphs S7.4(b) and S7.5(d)(2) were originally adopted in the 1970s to apply to four-lamp sealed beam headlighting systems in which each lamp was identical in size and contained only a single light source. When the lamps were mounted horizontally, side by side with identical horizontal centerlines, the outboard lamps were required to be the ones providing the lower beam, which also served to mark the width of the vehicle. When the lamps were mounted vertically, one atop the other with identical vertical centerlines, the lower beam continued to mark the width of the vehicle, but it was required to be the uppermost headlamp in order to provide a greater seeing distance. This established the location priority for the lower beam, that it be the outermost beam, and uppermost beam if the vertical axes of the lamps coincided.

As you are aware, in our previous letter of interpretation to you, we stated that manufacturers could use their discretion when specifying the location of the optical axis. We noted that for visual/optically aimed headlamps, the term optical axis as used in FMVSS No. 108 refers to the reference axis (a.k.a. mechanical axis) of the headlamp.[1] We said that because we believe, given the asymmetric nature of modern headlighting systems, the output of a lamp comprised of multiple sources is not in a pre-defined position (such as at the geometric center of the lens), as it is with symmetrical lamps such as turn signals. In these cases, the manufacturer is the entity best positioned to locate the reference axis from which photometric output of the the beam will be measured. NHTSA stated that it will use that reference axis when doing its own testing.

For similar reasons, with these kinds of lamps, we believe that the same reference axis (i.e., the optical axis) that is used to align the beam when measuring the photometric output of the lamp is also useful for determining the reference point for the physical location of the lens. As stated above, the purpose of the specifications at issue is to establish the location priority of the lower beam. The optical axis, as defined by the manufacturer, is already used to determine the optical center of the light beam produced. Therefore, as long as the reference axis of the lower beam headlamp is located farther outboard than the reference axis of the upper beam (or uppermost if arranged vertically), such alignment would be permissible under Standard No. 108.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:108

d.11/21/07

The Honorable George Radanovich

Member, U.S. House of Representatives

1040 East Herndon, Suite 201

Fresno, CA 93720

Dear Congressman Radanovich:

Thank you for your letter on behalf of your constituent, Mr. Bret de St. Jeor, who submitted a series of questions to the National Highway Traffic Safety Administration (NHTSA) regarding his product, Charlie Choo-Choos Party Train. Mr. St. Jeor contacted the National Highway Traffic Safety Administration in April via telephone and spoke with an attorney in the Office of the Chief Counsel, Ari Scott. Mr. Scott requested that Mr. St. Jeor submit his questions in writing regarding how the Federal motor vehicle safety standards would apply to his product.

As we discussed with Mr. St. Jeor, a response to his questions could take some time depending the complexity of the issue. We are currently reviewing Mr. St. Jeors request, and are in the process of preparing a response. Mr. St. Joers submission includes detailed information that requires careful analysis by NHTSA. We expect to provide Mr. St. Joer with a response to his questions in the near future.

I hope this information if helpful. If I can be of further assistance, please have your staff contact me or Anthony M. Cooke, Chief Counsel at (202) 366-9511.

Sincerely yours,

Michael W. Harrington

Director of External Affairs

cc: Washington Office

NCC-112:AScott/SForgues:mar:8/6/07:ES07-003911

Cc: NCC-110 Subj/Chron, NIA-110, I10, I20

S:\INTERP\500\07-003911sf.doc

Cc: NCC-112:AS:8/2/07:62992

NVS-100, NVS-200, Docket Std. 500

Mr. Jeffrey B. Baldwin

President/Owner

The Dork Company

P.O. Box 3314

Running Springs, CA 92382

Dear Mr. Baldwin:

This responds to your letter regarding the product that you sent to us, which we consider to be a type of sun visor. This device hooks to the rearview mirror and blocks the window in the areas between the vehicles visor and rearview mirror. You ask us to determine if your invention meets the vehicle safety standards in the United States, with regard to dimensions and the UL rating. We regret to inform you that this agency does not make those types of determinations. However, the information below should be of assistance.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

FMVSS No. 201, Occupant Protection in Interior Impact, contains requirements for sun visors.  However, the standard applies only to new motor vehicles, and not to items of aftermarket equipment, such as a sun visor installed by a vehicles owner.

If your product were installed on new motor vehicles, it would be subject to the provisions of FMVSS No. 201. We are enclosing an informational pamphlet for manufacturers of motor vehicles and motor vehicle equipment that can assist you in understanding the certification process. In addition, we are enclosing a copy of a previous interpretation[1] regarding a similar product, which may be helpful. That letter discusses the make inoperative provision of our statute (49 U.S.C. section 30122), which prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from making inoperative compliance with any safety standard.

As noted in the earlier letter, products of this type are considered items of motor vehicle equipment. Manufacturers of motor vehicle equipment must ensure that their products are free of safety-related defects (see 49 U.S.C. 30118-30121). In the event a manufacturer or NHTSA determines that the manufacturers product contains a safety-related defect, the manufacturer would be responsible for, among other things, notifying purchasers of the defective equipment and remedying the problem free of charge.

We hope this information has been helpful. Please contact Mr. Ari Scott of my staff at (202) 366-2992 if you have any additional questions.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosures

ref:201

d.9/17/07

Lars E. Gulbrandsen, Esq.

Quarles & Brady LLP

411 East Wisconsin Avenue

Milwaukee, WI 53202-4497

Dear Mr. Gulbrandsen:

This responds to your letter regarding the regulation of your clients (Eatons) product called the Hydraulic Launch Assist (HLA) system. You stated that the product is new regenerative braking system, and asked how it would be regulated under the Federal Motor Vehicle Safety Standards (FMVSSs). You stated that the HLA system is similar in purpose to the regenerative braking systems incorporated into hybrid-electric vehicles. According to your letter, the HLA system captures energy generated during braking in a large compressed gas accumulator containing nitrogen, and then releases that energy upon acceleration to produce better fuel economy. We are happy to provide answers to your questions below.

We note that in your letter, you requested that information regarding the HLA system be kept confidential. However, in a subsequent conversation with Ari Scott of my staff regarding the requirements for confidential submissions under 49 CFR 512, you agreed that it would be acceptable for the National Highway Traffic Safety Administration (NHTSA) to make your letter public in its current form, as is standard agency practice when issuing letters of interpretation.

By way of background, NHTSA is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

Question 1: Do the FMVSS standards applicable to Regenerative Braking Systems apply to the HLA system?

In the paragraph explaining this question, you noted that FMVSS No. 105, Hydraulic and Electric Brake Systems, defines a regenerative braking system (RBS) as an electrical energy system that is installed in an EV [electric vehicle] for recovering or dissipating kinetic energy, and which uses the propulsion motor(s) as a retarder for partial braking of the EV while returning electrical energy to the propulsion battery(s) or dissipating electrical energy. The same definition is included in FMVSS No. 135, Light Vehicle Brake Systems. You noted that the HLA does not use batteries nor is it designed to work with an electric vehicle. You stated that, accordingly, you do not read this definition to include the HLA system. We agree with this conclusion. The HLA would not be considered an RBS for purposes of these standards, and the RBS requirements specified in the standards would not apply to the HLA. We note that a vehicle subject to FMVSS No. 105 or 135 would, of course, be required to meet the other requirements of the applicable standard with the HLA as installed.

Question 2: What indicators must Eaton include on a vehicle incorporating the HLA system?

In your letter, you state that you believe Eaton is permitted to include an HLA system indicator on vehicles equipped with the HLA system under FMVSS No. 101, Controls, Telltales, and Indicators, provided this indicator does not interfere with required indicators. We note that, based on the information provided in your letter, the devices you are asking about are considered telltales under that standard, and we will refer to them as such.

According to the information you provided, the telltale will read HLA. A yellow HLA telltale would indicate that the HLA system is not functioning but that the vehicle can still be operated, while a red HLA telltale would indicate that the HLA system is not working and the vehicle should not be driven. Based on the information you provided, it is our opinion that the telltales you describe would be permitted under FMVSS No. 101.

We note that, for reasons stated above, the HLA system would not be considered an RBS under our standards. Therefore, it does not need to use the symbol RBS or ABS/RBS (the identification specified by FMVSS No. 101 for regenerative brake system malfunction telltales).

Since a telltale indicating a malfunction in a supplemental hydraulic/pneumatic braking system is not otherwise covered by Standard No. 101 or any other standard, its identification is at the option of the manufacturer. We also note that you are using a red color to indicate a severe failure, and a yellow color to indicate a less severe failure. This scheme uses those colors in a manner similar to how they are used for other telltales in FMVSS No. 101. Therefore, we consider this consistent with the requirements of S5.4.2, which states that [a]ny indicator or telltale not listed in Table 1 and identification of that indicator or telltale must not be a color that masks the drivers ability to recognize any telltale, control, or indicator listed in Table 1.

Question 3: Should the brake lights come on when the HLA system is retarding the speed of the vehicle?

In your letter, you asked if active slowing of the vehicle by the HLA system alone necessitates the activation of the brake lights. FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment, S5.5.4, states that [t]he stop lamps on each vehicle shall be activated upon application of the service brakes. Because the HLA system is a supplemental brake system (i.e., not the service brakes), the standard does not require the stop lamps to be activated upon activation of the HLA system.

We note, consistent with past interpretations, that FMVSS No. 108 does not prohibit the activation of the stop lamps when the HLA system is retarding the speed of the vehicle after the accelerator has been released. The SAE Recommended Practices on stop lamps that are incorporated by reference into Standard No. 108, SAE J586 (May 1984) and SAE J1398 (May 1985), define stop lamps as [l]amps which indicate the intention of the operator of a vehicle to stop or diminish speed by braking. If the vehicle is designed so that release of the accelerator results in braking action from the HLA, we believe this condition can be viewed as an intention by the operator to diminish speed by braking. However, if the HLA system is deactivated, then FMVSS No. 108 would prohibit the brake lights from being activated when the accelerator is released.[1]

Question 4: Does the HLA system implicate FMVSS No. 105 [121]?

In your letter, you ask if the HLA system implicates paragraph S5.3.4.1 of FMVSS No. 105. We presume this is actually a reference to paragraph S5.3.4.1 of FMVSS No. 121, Air Brake Systems, and that you are asking about a situation where the HLA system may be installed on air-braked vehicles. That paragraph establishes certain requirements for service brake release times. The definition of service brake is given in 49 CFR 571.3, and states that [s]ervice brake means the primary mechanism designed to stop a motor vehicle. Despite the fact that the HLA system is a brake system and does change the braking torque to the wheels, it is not the primary mechanism designed to stop the motor vehicle, and therefore not a service brake. Therefore, the HLA system is not subject to this requirement. However, we note that an air-braked vehicle would have to meet all of the requirements of FMVSS No. 121 with the HLA system installed.

Question 5: As a manufacturer of the HLA system, must Eaton register under 49 CFR 566?

You ask whether Eaton is required to register with NHTSA under 49 CFR 566. The answer is it is likely Eaton is not required to register by virtue of manufacturing the HLA system, although it depends on what, specifically, has been incorporated into the HLA system.

49 CFR 566.4, Application, states, [t]his part applies to all manufacturers of motor vehicles, and to manufacturers of motor vehicle equipment to which a motor vehicle safety standard applies. As you stated in your letter, Eaton plans to manufacture and sell the HLA system to vehicle manufacturers, which will install the HLA systems themselves. Therefore, under 49 CFR 566.4, Eaton is not subject to the requirements of Part 566 with regard to those standards that apply only to motor vehicles, because Eaton is not the manufacturer of the motor vehicle that the HLA system will ultimately become a part of. We note that Standards No. 101, 105, 121, and 135 are only applicable to vehicles.[2]

However, certain FMVSSs apply not only to motor vehicles, but also to items of motor vehicle equipment. If the HLA system encompasses some item of motor vehicle equipment to which an FMVSS directly applies, then Eaton would be subject to the requirements of Part 566.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:105

d.1/16/09

Glenn Dubin, Assistant Attorney General

Office of General Counsel

District of Columbia Department of Motor Vehicles

95 M Street, SW

Suite 300

Washington, DC 20024-2522

Dear Mr. Dubin:

This responds to your email regarding registration of low-speed vehicles (LSVs) in the District of Columbia. Specifically, you suggested that a DC law requiring that vehicles display a certification of compliance may cause a problem with the registration of LSVs. Based on the information contained in your email, we do not believe that the registration of LSVs will cause difficulties in the District of Columbia.

Let us begin by stating that this office has no special knowledge or expertise with respect the laws of the individual States or the District of Columbia. Our answer will address only the requirements of the laws and regulations administered by this agency.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). LSVs are motor vehicles and are thus subject to regulation by the FMVSSs. FMVSS No. 500, Low-Speed Vehicles, specifies requirements for LSVs (which references FMVSS No. 205, Glazing Materials, and FMVSS No. 209, Seat Belt Assemblies).  

All motor vehicles are subject to the Federal standards unless they are specifically exempted (see 49 U.S.C. 30112). Furthermore, like all other motor vehicles, under 49 U.S.C. 30115, manufacturers of LSVs must certify that the vehicles they produce comply with all applicable motor vehicle safety standards (see 49 CFR 567.4(g)(5)).

The reason that manufacturers do not certify that LSVs meet most FMVSSs is because most of the FMVSSs do not apply to LSVs. FMVSS No. 500 is the only FMVSS (along with potions of FMVSS No. 205 and 209) that applies to LSVs. Therefore, a manufacturer can certify that an LSV meets all applicable FMVSSs by certifying that it complies with those requirements.

You stated that the District of Columbia requires that vehicles must display a manufacturers certification of compliance, attesting that the vehicle complies with federal safety standards for use of public roads, streets, and highways. Properly-certified LSVs are capable of displaying such a certification.

If you have any additional questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:500

10/19/07

Paul S. Rosenlund, Esq.

Duane Morris LLP

One Market, Spear Tower

Suite 2000

San Francisco, CA 94105-1104

Dear Mr. Rosenlund:

This responds to your letter regarding your clients manufacture of bicycle racks for use on transit buses. You ask a number of questions about ensuring compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, with regard to a bicycle rack installed on the vehicles. We are happy to provide answers to your questions below.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

Question 1. We understand that vehicle manufacturers bear the sole legal obligation to certify vehicles as compliant with FMVSS 108 and other applicable safety standards, and that [F]ederal law does not require or make provisions for bicycle rack suppliers such as [our client] Sportworks to certify a bicycle rack or its component parts as being in compliance with [F]ederal standards. Please confirm our understanding to be correct.

Answer: While you are correct that manufacturers of new vehicles are responsible for certifying the compliance of the vehicle with all applicable FMVSSs, including FMVSS No. 108,[1] there are certain obligations of which your client should be aware.[2]

The first is S5.1.3 of FMVSS No. 108, which reads: No additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard. S5.1.3 has implications for a vehicle manufacturer or alterer installing the bicycle rack onto a new vehicle.[3] That party would need to certify the vehicle as complying with FMVSS No. 108 with the bicycle rack installed, ensuring that the bicycle rack does not impair the effectiveness of required lighting equipment. The second is 49 U.S.C. 30122 which we will discuss below, particularly in answering question 5.

2. We understand that 49 U.S.C. 30122, which prohibits making federally mandated safety devices and elements inoperative, applies only to a vehicle manufacturer, dealer or repair business; this make inoperative prohibition does not pertain to the activities of vehicle owners, such as transit agencies which own and operate transit buses, who may make changes to their buses in their own repair and maintenance facilities, even if they cause a vehicle to no longer comply with NHTSA safety standards such modifications would be governed by applicable [S]tate laws. Please confirm our understanding to be correct.

Answer: As you point out in your letter, 30122 of the Safety Act has implications for your client. Section 30122 states, in pertinent part:

A manufacturer, distributor, dealer, or motor vehicle repair business 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 prescribed under this chapter .

Your understanding is correct that the make inoperative provision of 30122 would not apply to a vehicle owner, such as a transit agency, that installs the bicycle rack in its own buses in its own repair and maintenance facility. However, please see our answer to question 5 for a more expansive discussion of 30122. In addition, there may be applicable Federal or State operational requirements relating to transit buses.

3. We understand that paragraph S7.8.5 of FMVSS 108 prohibits any styling ornament or other feature in front of the lens of a headlamp. In regard to all required lighting, we understand that paragraph S5.1.3 of FMVSS 108 prohibits motor vehicle equipment that impairs the effectiveness of lighting equipment required by this standard. Please confirm that these requirements pertain only to equipment such as a rack, and not to a bicycle or other item which may be placed in a rack. In this regard, we do understand that [S]tate laws may have other requirements that relate to bicycles or other temporary baggage wholly or partially obscuring any required lighting. Please confirm our understanding to be correct.

Answer: I would like to clarify several aspects of your statement. To begin, paragraph S7.8.5 only applies to the design of vehicle headlamps. The ornament or other feature described in that paragraph related to parts of the headlamp (e.g., wiper blades or translucent covers), not to additional vehicle equipment, such as a bicycle rack. Therefore, S7.8.5 would not be relevant to this discussion.

With regard to paragraph S5.1.3, as discussed in our answer to question 1, you are correct that a bicycle rack must not impair the effectiveness of required lighting equipment. In testing whether the vehicle complies with FMVSS No. 108, we would test the vehicle without a bicycle loaded on the rack, nor with any other cargo loaded into the vehicle. However, see our answer to question 5 regarding the make inoperative provision.

In addition, if the rack were installed such that a bicycle loaded onto the rack interfered with the functioning of a required lighting device, it is possible that such a situation could pose an unreasonable safety hazard. Under the Vehicle Safety Act, manufacturers are responsible for ensuring their vehicles and equipment are free of safety-related defects. If the design of the bicycle rack posed an unreasonable safety risk, we could investigate the problem as part of our defect authority.

Finally, you are correct in your understanding that the vehicle would be subject to State law requirements relating to items wholly or partially obscuring any required lighting. In addition, you should consider whether there are applicable Federal or State operational requirements relating to transit buses.

4. Sportworks on occasion supplies only the pivot plate assembly and/or bumper mounting brackets for its racks to OEM bus manufacturers for installation on new vehicles, with the understanding that the ultimate purchasers of these buses transit agencies will install racks in the configurations they select. In such circumstances, we understand that the OEM bus manufacturer may certify the bus as compliant with all applicable [F]ederal standards and that the owners selection, installation and use of the rack will be subject to [S]tate laws rather than to the FMVSS. Please confirm our understanding to be correct.

Answer: Your understanding is correct that the bus manufacturer must certify that the buses, with the installed private plate assemblies or mounting brackets installed, are compliant with FMVSS No. 108. However, please see our answer to question 5 for a more expansive discussion of issues raised by this question.

5. Finally, we understand from prior interpretive rulings that NHTSA considers a bicycle rack to be equipment such that if it is installed by a vehicle manufacturer, dealer or repair business, the complete vehicle, including the rack, must comply with the FMVSS, and if part of the rack installed by a vehicle manufacturer, dealer or repair business makes inoperative any required lamps or reflectors on the body of the vehicle, it would be necessary for the vehicle manufacturer, dealer or repair business to install auxiliary lamps or reflectors to replace the function of those made inoperative. Likewise, we understand from prior interpretive rulings that if a vehicle manufacturer, dealer or repair business sells a vehicle that complies with FMVSS 108 when delivered to the owner, but with hardware installed that the seller knows will be used to create a noncompliance, you would consider the vehicle manufacturer, dealer or repair business to have created the noncompliance. Please confirm our understanding to be correct.

Answer: It is correct that the new vehicle must be certified by its manufacturer as complying with all applicable FMVSSs with the bicycle rack installed. The vehicle must be certified with any system, part or component of a motor vehicle as originally manufactured. (See definition of motor vehicle equipment, 49 U.S.C. 30102(a)(7)(A)).

With regard to your questions about the make inoperative provision of 49 U.S.C. 30122, you are correct that NHTSA has addressed the scenario you describe (see March 26, 1996 letter to Chris Jorheim of New Flyer Industries, copy enclosed).[4] Mr. Jorheim asked about a manufacturer delivering a new bus to the end user with an advertising frame on the bus side. A required left side reflector would be unobstructed when the bus was delivered but once the owner placed an advertisement in the frame the reflector would have been covered. NHTSA determined that in this situation, the manufacturer produced a bus with the knowledge that the owner intended to create a noncompliance, and provided the hardware installed to enable the owner to do so. The agency determined that in this situation, both the bus manufacturer and the owner were creators of a noncompliance with FMVSS No. 108. However, since the owner is not subject to the provisions of 30122, the agency determined that the liability would be the manufacturers alone.

This analysis extends to the situation you describe as well. If the bus manufacturer installing Sportworks bicycle rack knew that the rack could not be used without creating a noncompliance with FMVSS No. 108 through, e.g., obstruction of the vehicles headlamps by the bicycles carried on the rack, both the bus manufacturer and the end user will be held to have created the noncompliance. Since the end user may not be subject to 30122, the bus manufacturer could alone be liable for making inoperative the vehicle safety system.

Finally, you are correct that one option to rectify a potential noncompliance with FMVSS No. 108 is to install auxiliary lamps or reflectors to replace the function of those made inoperative. This provision is contained in paragraph S5.3.2.2 of FMVSS No. 108, which states: If any required lamp or reflective device is obstructed by motor vehicle equipment (e.g., mirrors, snow plows, wrecker booms, backhoes, winches, etc.), and cannot meet requirements of S5.3.2, the vehicle must be equipped with an additional lamp or device of the same type which meet all applicable requirements of this standard, including S5.3.2.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:108

d.2/21/08

Mr. Terry Wagar

State of New York Department of Motor Vehicles

Office of Vehicle Safety and Clean Air

6 Empire State Plaza

Albany, NY 12228

Dear Mr. Wagar:

This responds to your request for our interpretation of whether A. 4687, a legislative bill proposing to amend Section 375-35 of the New York State Vehicle and Traffic Law, would be preempted by federal law. A. 4687 would amend Section 375-35 to prohibit tires from being manufactured, distributed, offered for sale or sold in New York for use on passenger vehicles, multi-purpose passenger vehicles, or light trucks unless a date of manufacture is clearly molded on both sides of the tire in a non-coded fashion.[1] Based on the information you have provided and the analysis below, we believe that the changes proposed to the Vehicle and Traffic Law by A. 4687, would be preempted by federal law.

The National Traffic and Motor Vehicle Safety Act, 49 U.S.C. 30103(b), expressly preempts State standards that differ from Federal motor vehicle safety standards in effect under the Act. Section 30103(b) states in relevant part:

When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.

Federal Motor Vehicle Safety Standard No. 139, (FMVSS) New Pneumatic Radial Tires for Light Vehicles (49 CFR 571.139), requires each tire to be labeled in the manner specified in Part 574, Tire Identification and Recordkeeping. S5.5.1 of FMVSS No. 139 states that for tires manufactured before September 1, 2009, Each tire must be labeled with the tire identification number required by 49 CFR part 574 on a sidewall of the tire, and that on the other sidewall, the tire must be labeled with either the tire identification number or a partial tire identification number containing all characters . . . except the date code and, at the discretion of the manufacturer, any optional code. S5.5.1(a). For tires manufactured on or after September 1, 2009, the requirements are similar, except that the full tire identification number is required on the intended outboard sidewall of the tire, unless there is no intended outboard sidewall. S5.5.1(b).

Part 574 contains requirements for identifying tire manufacture dates. Under 574.5, Tire identification requirements, tire manufacturers must permanently mold or laser etch into or onto the sidewall of each tire an identification number containing certain information. Among that information is a section with four numerical symbols representing the week and year of manufacture. Section 574.5(d) states in relevant part that:

The first two symbols must identify the week of the year by using 01 for the first full calendar week in each year, 02 for the second full calendar week, and so on. The third and fourth symbols must identify the year. Example: 0101 means the 1^st week of 2001, or the week beginning Sunday, January 7, 2001 and ending Saturday, January 13, 2001.

The language of A. 4687 requiring the date to be molded in a non-coded fashion and on both sides of the tire apparently specifies a labeling scheme that is not identical to that required by FMVSS No. 139. Since the State requirement would not be identical to the Federal requirement, we would consider A. 4687s proposed amendment to Section 375-35 of the New York Vehicle and Traffic Law to be preempted under 49 U.S.C. 30103(b).

I hope this information is helpful. If you have any further questions, please do not hesitate to contact Rebecca Schade of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

NCC-112:RSchade:mar:8/21/07:62992:OCC 07-004353

Cc: NCC-110 Subj/Chron

S:\INTERP\574\07-004353--21 Aug 07--rls.doc

Mr. Terry Wagar

State of New York Department of Motor Vehicles

Office of Vehicle Safety and Clean Air

6 Empire State Plaza

Albany, NY 12228

Dear Mr. Wagar:

This responds to your request for our interpretation of whether a proposed amendment to subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law would be preempted by Federal law. The proposed amendment (Bill No. A4130, Jan. 31, 2007) would require certain motor vehicles to be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Based on the information you have provided and the analysis below, we believe that the proposed amendment in Bill No. A4130 would be preempted.

The National Traffic and Motor Vehicle Safety Act, 49 U.S.C. 30101 et seq., expressly preempts state standards that differ from Federal motor vehicle safety standards. Section 30103(b) of the Act states, in relevant part:

When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.

Federal Motor Vehicle Safety Standard (FMVSS) No. 111, Rearview mirrors (49 CFR 571.111) prescribes performance and location requirements for rear and side view mirrors on new passenger cars, multipurpose passenger vehicles (MPVs), trucks, buses, school buses and motorcycles.

Bill No. A4130 would amend subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law by adding paragraph (d)(ii), which would require that every new passenger-type motor vehicle, except a motorcycle, manufactured for sale in New York be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. New Yorks definition of passenger-type motor vehicle encompasses any motor vehicle with a seating capacity of not more than fifteen adults that is equipped with one or more rear windows. The new (d)(ii) rearview mirror requirement added by New York Bill No. A4130 would thus apply to passenger vehicles that are subject to FMVSS No. 111: new passenger cars, MPVs, trucks, buses, and school buses that seat less than 16.

We have determined that by adding (d)(ii) to subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law, New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111. Under the first sentence of 49 U.S.C. 30103(b), the state may prescribe a standard applicable to the same aspect of performance as the Federal standard only if the state standard is identical to FMVSS No. 111. The following discussion analyzes the Federal and state standards according to vehicle type (as defined under 49 CFR 571.3, Definitions).

Passenger Cars

S5.3 of FMVSS No. 111 mandates passenger side outside rearview mirrors only for passenger cars whose inside rearview mirrors do not meet the field of view requirements of S5.1.1. Bill No. A4130 would require cars to be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Thus, Bill No. A4130 would require passenger side rearview mirrors on new passenger cars where FMVSS No. 111 does not. The proposed rearview mirror requirement in Bill No. A4130 would not be identical to the Federal requirement, and we would consider the proposed requirement (10-d(ii) in Bill No. A4130) to be preempted under 49 U.S.C. 30103(b).

MPVs, Trucks and Buses Up to 4,536 Kilograms (10,000 Pounds) GVWR

S6.1 of FMVSS No. 111 requires all MPVs, trucks, and buses with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg)(10,000 pounds) or less (other than school buses) to either conform to the requirements for passenger cars (S5) or to have outside rearview mirrors on both sides. Thus, an MPV, truck or bus in this GVWR category that has an inside rearview mirror that complies with the field of view requirements of S5.1.1 is not required by FMVSS No. 111 to have a passenger-side outside rearview mirror. Some of these same motor vehicles are included in the definition of passenger-type motor vehicle in subdivision 10-d, and thus Bill No. A4130 would require an MPV, truck or bus in this GVWR category to have a passenger side rearview mirror where FMVSS No. 111 does not. Because the rearview mirror requirement in Bill No. A4130 is not identical to the FMVSS No. 111 requirements for MPVs, trucks or buses in this GVWR category, the proposed 10-d(ii) in Bill No. A4130 would be preempted under 49 U.S.C. 30103(b).

MPVs, Trucks and Buses Greater Than 4,536 Kilograms (10,000 Pounds) GVWR

S7 of FMVSS No. 111 applies to MPVs and trucks with a GVWR of more than 4,536 kg and less than 11,340 kg and each bus, other than a school bus, with a GVWR greater than 4,536 kg. S8 applies to MPVs and trucks with a GVWR of 11,340 kg or more. These two sections of FMVSS No. 111 specify that such vehicles shall have outside mirrors of unit magnification, each with not less than 323 cm² of reflective surface, installed with stable supports on both sides of the vehicle. The rearview mirror requirement added by Bill No. A4130 (paragraph 10-d(ii)) specifies that these vehicles must be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Because New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111, the state standard must be identical to the Federal standard. Because the rearview mirror requirement in Bill No. A4130 is not identical to the FMVSS No. 111 requirements for this category of motor vehicles, the proposed 10-d(ii) in Bill No. A4130 would be preempted under 49 U.S.C. 30103(b).

School Buses That Seat Less Than 16

S9 of FMVSS No. 111 applies to school buses, and specifies a comprehensive mirror system for school buses. Because New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111, the nonidentical state rearview mirror standard proposed by Bill No. A4130 would be preempted under 49 U.S.C. 30103(b). Under the second sentence of 30103(b) New York may have a state standard for mirrors on vehicles procured for the state's own use (e.g., public school buses) that imposes a higher level of safety than FMVSS No. 111. However, we are unable to determine from your letter whether the New York state rearview mirror standard proposed in Bill No. A4130 would prescribe a higher performance requirement than the comprehensive mirror system for school buses under FMVSS No. 111.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact Sarah Alves of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:111

d.1/31/08

Mr. Guy Dorleans

International & Regulatory Affairs

Valeo Lighting Systems

34, rue Saint-Andr

93 012 Bobigny Cedex

France

Dear Mr. Dorleans:

This responds to your letter, in which you ask about the activation of daytime running lamps (DRLs) under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Specifically, you ask whether various LED (light-emitting diode) lamp designs, incorporating a parking lamp function in addition to other functions, can be used as DRLs under the standard. Our answer is that this would not be prohibited by FMVSS No. 108.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

The relevant language in FMVSS No. 108 regarding the regulation of DRLs is paragraph S5.5.11(a). This paragraph reads, in part:

Any pair of lamps on the front of a passenger car, multipurpose passenger vehicle, truck, or bus, whether or not required by this standard, other than parking lamps or fog lamps, may be wired to be automatically activated, as determined by the manufacturer of the vehicle, in a steady burning state as daytime running lamps (DRLs) and to be automatically deactivated when the headlamp control is in any on position

In your letter, you described two scenarios in which an array of four LEDs that could serve as both a parking lamp and as a DRL. In the first scenario, one LED in the array is activated alone in parking lamp mode, while all four are activated in DRL mode. In the second scenario, all four LEDs in the array are activated at a low intensity in parking lamp mode, and all four are activated at a higher intensity in DRL mode. You indicated that for both scenarios the lamp would meet the specified photometric requirements for whichever function was activated, i.e., parking lamp or DRL. We believe that both designs would be permitted by FMVSS No. 108.

In a 1997 letter of interpretation which we have enclosed,[1] we explained the rationale of prohibiting parking lamps to be used as DRLs. In that letter, we stated:

[A] manufacturer may use any pair of front lamps for the DRL feature, other than parking lamps (too small to be effective) or fog lamps (too bright).

For the purpose of S5.5.11(a), the array of LEDs that you described in your letter, which can serve the function of parking lamps or other lamps depending on how they are activated, would not be considered parking lamps in either of the scenarios that you described. In DRL mode, the lamps would be substantially brighter than the parking lamps, and according to your letter, their photometric output would comply with the requirements of S5.5.11(a)(1), which sets minimum and maximum output for DRLs. This would result in effective DRLs, which is the intent of the requirement in FMVSS No. 108.

We also note that the use of multifunction lamps, including lamps that function, in part, as parking lamps, were considered in the development of the DRL standards. In a 1988 letter of interpretation,[2] we stated that:

[A] lamp that functions both as a parking lamp and a DRL and which is operated in daylight could act as either a DRL or a parking lamp, depending on the intensity of the light emitted, but it would have to meet the photometric requirements for the function being exercised.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:108

d.4/29/08