ID: 19884.ztv

Mr. Ron Woodward, P.E.
Section Supervisor Optics & Adv. Eng.
Federal Mogul
2513 58^th Street
Hampton, VA 23661

Dear Mr. Woodward:

This is in reply to your letter of April 19, 1999, requesting an interpretation of Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment as it applies to a proposed horizontal alignment system for use with visual/optical aim headlamps.

Paragraph S7.8.2.1(c) of Standard No. 108 states that "A visually/optically aimable headlamp that has a lower beam shall not have a horizontal adjustment mechanism unless such mechanism meets the requirements of paragraph S7.8.5.2 of this standard." You reference previous interpretations of this office which state "that disabled horizontal adjusters are acceptable [i.e., are not horizontal aim mechanisms within the meaning of the phrase]," that "certain types of anti-tamper screws are not permitted" ("ones that can be driven in one direction"), but not all types of such screws, and "exposed screw heads were also rejected because pliers could be used to rotate the screw."

You have enclosed a drawing showing a horizontal alignment system that you propose to use. It "would be used during manufacturing to achieve proper mechanical alignment of the mounting surface and lamp optical system and is not meant to be adjustable after manufacture." The drawing you enclose shows both a plan and section view of your system. There is an "external shroud [which] prevents adjustment by wrenches and pliers." There is also a center section described as "center anti-tamper post [which] prevents entry of standard Torx driver bit, screw driver, & Allen wrench." You ask whether we would regard this as a horizontal adjustment mechanism as prohibited by S7.8.2.1(c).

Yes, we would regard this design as a horizontal aim mechanism within the meaning of S7.8.2.1(c)(and impermissible because it does not meet S7.8.5.2). Although the center anti-tamper post prevents entry of a standard Torx driver bit, non-standard Torx driver bits are readily available which would defeat your intent that the horizontal alignment not be adjustable after manufacture. Specifically, SK Drive Tamper-Proof Torx Bits are available through internet web sites, if not tool jobbers and mobile tool sales outlets, and these are intended to fit the center anti-tamper post and allow entry.

If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/28/99

ID: 19886.ztv

David H. Coburn, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036-1795

Re: Request for Clarification

Dear Mr. Coburn:

This is in reply to your letter of April 16, 1999, seeking a confirmation that a previous interpretation of Federal Motor Vehicle Safety Standard No. 108 remains valid.

The interpretation is one that we sent your client, Baran Advanced Technologies, Ltd., on September 7, 1993. In that letter, we informed Baran that we did not believe that a device which activates a vehicle's hazard warning system upon sensing a sudden release of the accelerator pedal would impair the effectiveness of the stop, tail, and turn signal lamps required by Standard No. 108, assuming that the device is not activated under normal stopping conditions, that it is automatically deactivated when the brake pedal is applied, that manual deactivation is not required, and that the device would be overriden by manual activation of the turn signal lamps.

Regrettably, I cannot confirm that this interpretation remains valid. Our earlier interpretation did not consider the effect of the device upon the hazard warning signal itself. Since 1993, we have come to the conclusion that use of required lighting equipment for other than its original purpose may compromise and reduce its safety effectiveness. As we said in 1996,

It is important that the integrity of the required signal lamps be maintained, and that auxiliary signal lamps not detract attention from the messages that the required signal lamps are sending. A vehicle signaling system must be as simple and as unambiguous as possible to others who share the roadway if traffic is to proceed in a safe and orderly fashion. (61 FR 65516)

See also our Statement of Policy published in the Federal Register on November 4, 1998 (63 FR 59482, copy enclosed).

We believe that a hazard warning system should not be used for the auxiliary purpose of indicating sudden accelerator release, a signal that bears no relationship to a hazard warning signal and one which could create confusion were the hazard warning signal used for an unrelated purpose. We believe that our 1993 interpretation was superseded by our subsequent policy statement, and therefore reverse it and conclude that S5.1.3 prohibits the system as described.

If you have any questions, you may call Taylor Vinson (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref.108
d.8/6/99

ID: 1988y

Mr. Dan Trexler
Specifications Engineer
Thomas Built Buses, Inc.
P.O. Box 2450
High Point, NC 27261

Dear Mr. Trexler:

This is in reply to your letter of May 8, l989, to the former Chief Counsel of this agency, Erika Jones. You have received requests "to install a master electrical disconnect switch on many buses." When the switch is turned to the "off" position "it renders inoperative the warning signals (to the driver) required by FMVSS l05, 121 and 217. It also inactivates the hazard warning flasher required by FMVSS l08." You ask whether installation of the switch would constitute a noncompliance, or a "safety related hazard." if it is accessible to the seated driver, or if remotely located in the battery or engine compartment, without ready access to the driver.

Although you have not explained the purpose of such a device, we understand that a battery disconnect switch of this nature is deemed desirable by many bus owners to prevent drains on the battery when the bus is at rest. When the switch is activated, the bus cannot be started and driven because electric power is not available. Under this circumstance we do not believe that the switch either creates a noncompliance with any of the standards listed, nor constitutes a safety related defect, regardless of its location. When the bus is in operation the warning systems of the standards are not affected. The possibility of inadvertent activation when the bus is in use does not constitute a defect in performance, construction, components, or materials such as to create a safety related defect. To forestall any possibility of inadvertent activation, however, you may find it preferable to locate the switch away from the driver.

We understand that a purpose of this switch is to reduce the likelihood of fire after accidents in which there has been fuel spillage. In this circumstance, it is likely that the bus would be positioned either in the roadway or adjacent to it. Safety would be enhanced if the hazard warning signal power source were separate from the batteries inactivated by the disconnect switch, so that these warning lamps could continue to operate.

Sincerely,

Stephen P. Wood Acting Chief Counsel / ref:VSA#l04#l08#l2l#2l7 d:8/30/89

ID: 19891.drn

Mr. Dennis Seavey
Plus Time New Hampshire
160 Dover Road, Suite One
Chichester, NH 93234

Dear Mr. Seavey:

This responds to your letter asking about our August 8, 1998, interpretation to Mr. Terry L. Voy, School Transportation Consultant for the Iowa Department of Education, concerning our school bus regulations.

In the letter to Mr. Voy, we explained that persons selling a new bus to a daycare facility must sell a "school bus" if the bus will be significantly used to transport school children to or from school or related events. As to whether a bus is "used significantly" for such use, we told Mr. Voy that regular use of a bus to pick up students from school five days a week would constitute "significant use" as a school bus. We also stated in that letter that "regular use on alternate days would be 'significant.'"

You ask about the latter statement, as to whether transporting school-aged children to and/or from a child care facility and school three days a week (Monday, Wednesday, and Friday) constitutes "significant use" as a school bus. You also ask if we would consider the bus to be "significantly" used for school transportation if it were used to take children to and/or from school on Tuesdays and Thursdays.

Our answer is that regular use of the vehicle to transport school children to or from school on Mondays, Wednesdays, and Fridays, or on Tuesdays and Thursdays, is "significant use" of the vehicle for school transportation. We would also consider transportation provided to or from school on any two days during a week to be regular use and therefore "significant."

As you are aware, the National Highway Traffic Safety Administration's (NHTSA) safety standards directly regulate the manufacture and sale of new motor vehicles, not their use. Each state has the authority to set its own standards regarding use of motor vehicles, including school buses. Please check with the appropriate New Hampshire officials to see if any State law regulates how New Hampshire school children must be transported between their school and after school programs. For information on New Hampshire's requirements, you may contact New Hampshire's State Director of Pupil Transportation:

Ms. Bethia LaMarca, Pupil Transportation Supervisor
New Hampshire Department of Safety
10 Hazen Drive
Concord, NH 03305
Telephone: (603) 271-1999

In closing, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children" that describes the safety features of a school bus. I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." If you have any further questions please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.5/20/99

ID: 1989y

Mr. Bradley J. Baker
President
Classic Manufacturing, Inc.
21900 U.S. 12
Sturgis, MI 49091

Dear Mr. Baker:

This is in reply to your letter to Taylor Vinson of this Office, with reference to a product your company manufactures, a "car dolly used to tow a vehicle behind motor homes." You question whether the dolly is a motor vehicle, and if so, whether identification lamps are necessary for it. I regret the delay in responding.

The car dolly appears to be a vehicle drawn by mechanical power manufactured primarily for use on the public roads, and thus a "motor vehicle" subject to the jurisdiction of this agency. Specifically, it would be a "trailer", since it is a motor vehicle without motive power, designed for carrying property and for being drawn by another motor vehicle. Federal Motor Vehicle Safety Standard No. l08, Lamps, Reflective Devices, and Associated Equipment, requires identification lamps on all trailers whose overall width is 80 inches or more. Therefore, if the overall width of your dolly is less than 80 inches, it need not be equipped with identification lamps.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ Ref:l08 d:8/3l/89

ID: 1990y

Thomas A. Coz, Esq.
Senior Attorney
North American Van Lines
Law Department
P.O. Box 988
Fort Wayne, IN 46801-0988

Dear Mr. Coz:

This is in reply to your letter of April 28, l989, with respect to the legality under Standard No. l08 of supplemental lighting devices that North American Van Lines has installed on some of its trailers. To assist us in answering your question, you have enclosed a photograph of a trailer retrofitted with the supplemental devices, and a videocassette. However, the "Final Specs" sheets referenced in your letter were not enclosed.

The lamps in question are stop lamps/turn signal lamps which are mounted above the maximum mounting heights specified in Standard No. l08. You believe that this is permissible because they are supplemental to the original equipment stop and turn signal lamps which are mounted within the limits specified in the standard. However, the Department of California Highway Patrol has informed you that this agency does not differentiate between original and supplemental equipment, and requires that both original and supplemental lighting equipment must conform to the mounting requirements.

We are not aware of the basis of the California opinion. The only requirement of Standard No. l08 for supplemental lighting equipment on vehicles prior to their first purchase for purposes other than resale is the restraint of paragraph S5.l.3 that they not impair the effectiveness of the lighting equipment required by the standard.

Retrofit by North American Van Lines itself of its own vehicles after the first purchase for purposes other than resale is permissible under Federal law. However, if the retrofit were performed by a manufacturer, dealer, distributor, or motor vehicle repair business, the operation would be subject to the restraint of Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (l5 U.S.C. 1397(a)(2)(A)) that it not render inoperative, in whole or in part, lighting equipment installed in accordance with Standard No. l08. Subject to these constraints, a mounting height that exceeds the maximum specified by Standard No. l08 is permissible for supplemental lighting equipment. We interpret "partially inoperative" as also meaning "partially ineffective". The location of your lamps as shown in the photograph you enclosed does not appear to "render inoperative" any other lighting device or affect its effectiveness.

We note that the retrofitted trailer in the videocassette does not appear to be equipped with the identification lamps required by Standard No. l08. Further, unless the clearance lamps are combined with the supplemental stop/turn signals in both the videocassette and the photograph you enclosed, they too appear to be missing. If the clearance lamps are combined with the supplementary lamps, care should be taken that the supplementary lamps do not "render inoperative" the clearance lamps. Although, as noted above, the Act permits an owner to modify his vehicle in a nonconforming manner, the operation of your interstate highway trailer is subject to the regulations of the Bureau of Motor Carrier Safety, Federal Highway Administration, which require that identification and clearance lamps be provided for these trailers.

We are returning your videocassette.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

ref:VSA Sec. l08 d:8/24/89

ID: 19914.drn

Matt Boley, Executive Director
Mary J. Treglia Community House
900 Jennings St.
Sioux City, IA 51105

Dear Mr. Boley:

This responds to your request for information regarding transportation of school children from school to your facility and during the school day. You write that, in addition to providing services for school children, you offer adult programs such as English as a Second Language and Citizenship classes, as well as senior citizen and health outreach programs. In a telephone conversation with Dorothy Nakama of my staff, you stated that you regularly provide transportation from school for the school children and that you are using 15-person vans to transport both the adults in your program and the children.

Some background information would be helpful in answering your question. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

In recent interpretation letters to NHTSA, the agency was asked to address situations where non-educational institutions (such as day care centers) are procuring buses to transport children to or from schools. When a day care center will be using a bus to transport school children "to or from school" or school-related activities on a regular (non-occasional) basis, the dealer who sells or leases the new bus to the center must sell or lease a "school bus." These may include van-based vehicles, completed by school bus manufacturers, that are certified to those standards. In contrast, if a day care center will not use the new bus to take children to or from school or school-related activities, the dealer is not required to sell or lease a school bus.

One of those letters involved a dealer selling a new 15-passenger van to a child care facility which planned to significantly use the van for school transportation. The letter is dated July 23, 1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explained that a dealer selling or leasing a new van for such use must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.⁽¹⁾

Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit centers from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Iowa law to see if there are regulations about how your center must transport school children.

Further, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." If you have any further questions please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3 "school bus only"
d.6/10/99

1. Again, please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that are not significantly involved in transporting school aged children "to or from" school. The Cote letter could affect the facility if it is involved in transporting children to or from school.

ID: 1991y

Mr. Terry Hudyma
Vice President, Engineering
LAFORZA Automobiles, Inc.
3860 Bay Center Place
Hayward, CA 94545

Dear Mr. Hudyma:

Thank you for your letter requesting an interpretation of 49 CFR Part 567, Certification. Specifically, you asked about certification requirements for multipurpose passenger vehicles that will be assembled in Italy and in Michigan. I apologize for the delay in this response. The vehicles in question will be assembled in Italy to the extent that they will be "complete with everything except the engine (and associated equipment such as ignition and air conditioning, etc.), transmission and transfer case in Italy." These assemblies will then be imported into the United States where the vehicles will be completed. You state that both the operations in Italy and in Michigan will be performed pursuant to a contract with LAFORZA, who will have "complete control over the manufacturing process at all times."

It is your understanding that in the fact situation described above, LAFORZA is considered to be the manufacturer of the vehicle and therefore LAFORZA is responsible for affixing the certification label on the completed motor vehicle pursuant to 49 CFR Part 567. You asked us to confirm this interpretation. We cannot do so. Under our law and regulations, the company that completes the vehicles in Michigan is a "manufacturer" of the vehicles in question. The information provided in your letter is inadequate to allow us to determine whether LAFORZA might also be considered a "manufacturer" of these vehicles.

The first issue to be addressed in our analysis is whether the products in question are "incomplete vehicles" when they arrive in the United States. An "incomplete vehicle" is defined at 49 CFR 568.3 as:

... an assemblage consisting, as a minimum, of frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

Your letter states that the products that arrive in the United States will not have an engine or transmission, which means they will not have a power train. Accordingly, 568.3 makes clear that these products would not be "incomplete vehicles" for the purposes of our regulations. In previous interpretations, we have referred to products that do not qualify as "incomplete vehicles" as an "assemblage of items of motor vehicle equipment". In those previous letters, we have stated that the assemblage should be labeled as items of motor vehicle equipment for importation into the United States and that the importer of the assemblage must certify that each item of motor vehicle equipment that is covered by a Federal motor vehicle safety standard complies with such standard. See the enclosed May 6, 1985 letter to Mr. Hayley Alexander.

This finding also means that the Italian company that produces these "assemblages of items of motor vehicle equipment" is not a "manufacturer" of motor vehicles with respect to the vehicles in question. Section 102(5) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391(5); the Safety Act) defines a "manufacturer" as "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." In this case, the Italian company producing the assemblage of items of motor vehicle equipment has not manufactured or assembled any motor vehicles, nor has it imported any motor vehicles. Hence, it does not fit the statutory definition of a "manufacturer" of the vehicles in question.

After these assemblages are imported into the United States, the operations performed by the Michigan company will transform the items of motor vehicle equipment into a motor vehicle. Therefore, the Michigan company would be a "manufacturer" of these vehicles for the purposes of the Safety Act and our regulations. Since 567.4(g)(1) requires the certification label to include the name of the manufacturer, the vehicles could comply if the name of the Michigan company were shown on the certification label.

The information in your letter was inadequate to allow us to make even a tentative determination of whether LAFORZA may also be considered a manufacturer of these vehicles. The agency discussed the issue of vehicles with more than one "manufacturer" at length in its proposal to establish rules of attribution for determining which of the manufacturers would be responsible for complying with the phase-in requirements in Standard No. 208, Occupant Crash Protection (49 CFR 571.208). In that proposal, NHTSA said:

Since the National Traffic and Motor Vehicle Safety Act places the responsibility of compliance with safety standards on manufacturers, the agency does not have authority to attribute a vehicle to a party other than one of the vehicle's manufacturers. However, the agency considers the language in section 102(5) of the Vehicle Safety Act that a manufacturer is "any person engaged in the manufacturing or assembling of motor vehicles . . ." to be sufficiently broad to include sponsors, depending on the circumstances. For example, if a sponsor contracts for another manufacturer to produce a design exclusively for the sponsor, the sponsor may be considered the manufacturer. This follows from application of basic principles of agency law. In this case, the sponsor is the principal. On the other hand, the mere purchase of vehicles for resale by a company which also is a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles. 50 FR 14589, at 14596; April 12, 1985.

According to your letter, LAFORZA has a contractual relationship with the company in Italy that is producing the assemblage of items of motor vehicle equipment and a contractual relationship with the company in Michigan that is assembling the motor vehicle. These contractual relationships led you to assert that "... LAFORZA Automobiles will have complete control of the manufacturing process at all times." If LAFORZA merely has contractual relationships under which it purchases products for resale from the companies in Italy and Michigan, LAFORZA would not be considered the manufacturer of those vehicles. If you can provide us with information about any role LAFORZA has in producing these vehicles besides contracting with other companies to assemble the vehicles, we will review that information and offer our interpretation of whether LAFORZA could be considered a "manufacturer" of these vehicles for the purposes of the Safety Act and our regulations.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

cc: Mr. Hans W. Metzger LAFORZA Safety Consultant 6323 E. Turquoise Avenue Scottsdale, Arizona 85253

ref:567#568 d:9/7/89

ID: 1992y

Commander
U.S. Army Missile Command
(Mr. Bob Bergman)
ATTN: AMCPM-FM-TM
Redstone Arsenal, Alabama 35898-5793

Dear Commander:

This is in reply to a letter of August 7, l989, from Jerry L. Dooley, Deputy Project Manager, Non-Line of Sight, with respect to "safety standards of the military nature", in particular those that would apply to the M1037 High Mobility Multipurpose Wheel Vehicle (HMMWV), as well as the M993 Bradley Fighting Vehicle System (BFVS).

This agency has jurisdiction over all motor vehicles, defined as vehicles driven or drawn by mechanical power which are manufactured primarily for use on the public roads. Our principal role is the issuance of the Federal motor vehicle safety standards, and the monitoring of the notification and remedial campaigns of manufacturers upon the occurrence of noncompliances with the standards, or safety related defects in vehicles. We have never issued safety standards for military vehicles. Quite the opposite; although we interpret our authority as covering military vehicles, the agency has always specifically exempted from compliance with the standards any motor vehicles manufactured for, and sold directly to, the Armed Forces of the United States in accordance with contractual specifications.

Frequently, military contracts for procurement of vehicles will call for their conformance with the Federal safety standards, when the nature of the vehicle is such (e.g. passenger car, bus) that conformance with the standards is not inconsistent with the configuration required to accomplish their mission. None of our safety standards for civilian vehicles cover driver field of view, basic visibility requirements, or ingress/egress. Our glazing standard does specify minimum levels of light transmittance, and our rearview mirror standard covers rear view mirror placement and rearward field of view. I am enclosing copies of these standards for your information.

If you have further questions, we will be pleased to answer them.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures - Standards Nos. lll, 205

ref: 571.7 d:9/7/89

ID: 1993y

Mr. Taylor Hong
President, Fair Sun Industrial Co., Ltd.
P.O. Box 36-570
Taipei, Taiwan

Dear Mr. Hong:

This is in reply to your letter with reference to motor vehicle flashers that you wish to sell in the United States.

You have asked the following questions:

l. "How do we get DOT approval?" 2. "Should ask for an application forms from you and sent one lot of samples for your test?"

The Department has no authority to "approve" flashers, and no laboratory of its own in which it tests them. Under our law, the National Traffic and Motor Vehicle Safety Act, the manufacturer of the flashers, not the Department, determines in the first instance whether or not they comply with the SAE materials incorporated into Federal Motor Vehicle Safety Standard No. l08. If the manufacturer is convinced that they comply, it certifies that the flashers meet Standard No. l08, either with a statement on the container in which the flashers are shipped, a tag attached to each flasher, or a DOT symbol on the flasher itself. From time to time, the Department buys flashers for testing. In this manner, the Department has discovered that a number of those manufactured in Taiwan have not met Federal requirements, and lacked the required certification. In some instances, civil penalties have been imposed against the manufacturer or importer of the flashers.

3. "We may send samples to any other Laboratory and get an approval?"

To aid you in reaching a conclusion whether the flashers are designed to conform with Standard No. 108, you may send samples to any test laboratory you wish. Although the standard deems a flasher compliant if not less than 17 of 20 flashers tested meet the requirements, we caution you that you should not accept such a result as a guarantor of compliance. Because of the tolerances involved in production of flashers, we believe that a manufacturer wishing to ensure that at least 17 of 20 flashers will pass whenever the government tests them should design its flashers to achieve a higher level of compliance with durability and performance requirements than the minimum acceptable number of 17. Once a higher level is reached, a manufacturer should ensure that the flashers will continue to meet Standard No. l08 over time. Accordingly, we urge flasher manufacturers to test their products periodically as an assurance that a minimum of 17 out of every 20 continue to meet the performance and durability requirements specified.

Although you have no obligation to obtain "approval" from the Department, there are two requirements that manufacturers of flashers must meet before offering their products for sale in the U.S. You must designate an agent for service of process (49 CFR 551.45) and file an identification statement (49 CFR Part 566). I enclose a copy of these regulations for your information.

If you have any further questions we shall be pleased to answer them.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:108 d:9/l3/89