ID: 11283

Mr. Tom Byrne
Vice President
Goodridge (USA) Inc.,
20309 Gramercy
Torrance, CA 90501

Dear Mr. Byrne:

This responds to your letter requesting an interpretation of Federal Motor Vehicle Safety Standard No. 106; Brake hoses. According to your letter, you plan to sell a brake hose assembly for hydraulic brake systems that you refer to as "Stainless Steel Braided Brakelines." You then asked several questions about selling your product in this country.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) administers Federal requirements for the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment, including brake hose assemblies. Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards (FMVSSs). This process requires each manufacturer to determine that its products meet all applicable requirements. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces. I have enclosed an information sheet that highlights the responsibilities you must meet as a manufacturer of motor vehicle equipment.

Standard No. 106 applies to new motor vehicles and to brake hoses, brake hose end fittings, and brake hose assemblies. The standard specifies labeling and performance requirements for these products to reduce the likelihood of brake system failure from ruptures in the brake hose or brake hose assembly. New brake hoses, end fittings, and assemblies must meet these requirements to be sold in or imported into this country. If the items do not comply, the manufacturer is subject to the civil penalties and the recall responsibilities mentioned above.

You first asked NHTSA to "confirm" that an independent laboratory certification is valid for the United States. As explained above, NHTSA does not approve manufacturers' products or conduct pre-sale testing of their products. In the United States, the individual manufacturer must certify that its product complies with all applicable FMVSS's.

You then asked NHTSA to confirm that such a brake hose assembly can be used with an adapter into the master cylinder or caliper. Your brake hose assembly can be used at any place in a motor vehicle, provided that in installing it, a vehicle manufacturer, distributor, dealer or repair business does not knowingly make inoperative, in whole or in part, a vehicle or item of equipment which is in compliance with any applicable safety standard. Specifically, inclusion of your brake hose assembly could not modify a hydraulic brake system subject to FMVSS No. 105, Hydraulic Brake Systems, to the extent that it no longer complies with the standard.

Your next question asked whether there are any special marking requirements for brake hose assemblies manufactured for sale in the United States. Section S5.2.4 sets forth labeling requirements for brake hose assemblies.

Section S5.2.4 states that

Each hydraulic brake hose assembly, except those sold as part of a motor vehicle, shall be labeled by means of a band around the brake hose assembly as specified in this paragraph or at the option of the manufacturer, by means of labeling as specified in S5.2.4.1. The band may at the manufacturer's option be attached so as to move freely along the length of the assembly, as long as it is retained by the end fittings. The band shall be etched, embossed, or stamped in block capital letters, numerals or symbols at least one-eighth of an inch high, with the following information:

(a) The symbol DOT constituting certification by the hose assembler that the hose assembly conforms to all applicable motor vehicle safety standards.

(b) A designation that identifies the manufacturer of the hose assembly which shall be filed in writing with: Office of Vehicle Safety Standards, Crash Avoidance Division, National Highway Traffic Safety Administration, 400 Seventh Street SW., Washington DC 20590. The designation may consist of block capital letters, numerals or a symbol.

In addition, section S5.2.4.1 provides as an option that at least one end fitting be etched, stamped or embossed with a designation at least one-sixteenth of an inch high that identifies the manufacturer of the hose assembly.

I have also enclosed copies of two procedural requirements you must satisfy in order to sell your products in this country. The first requirement is NHTSA's regulation for manufacturer identification (49 CFR Part 566). This regulation requires a manufacturer of equipment to which an FMVSS applies (e.g., brake hoses) to submit its name, address, and a brief description of the items of equipment it manufacturers to NHTSA within 30 days after it first imports its products into the United States. The second requirement is NHTSA's regulation for designations of agents (49 CFR Part 551, Procedural Rules, Subpart D). The regulation requires all manufacturers headquartered outside of the United States to designate a permanent resident of the United States as the manufacturer's agent for service of all process, notices, orders and decisions. This designation should be mailed to me at the following address: Chief Counsel, Room 5219, National Highway Traffic Safety Administration, 400 Seventh St., S.W., Washington, D.C., 20590. The designation must include the following information:

1. A certification that the designation of agent is valid in form and binding on the manufacturer under the laws, corporate-by-laws, or other requirements governing the making of the designation at the time and place where it is made;

2. The full legal name, principal place of business and mailing address of the manufacturer;

3. Marks, trade names, or other designations of origin of any of the manufacturer's products which do not bear its name;

4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;

5. A declaration of acceptance duly signed by the agency appointed, which may be an individual, a firm or a United States corporation; and,

6. The full legal name and address of the designated agent.

7. In addition, the designation must be signed by a person with authority to appoint the agent. The signer's name and title should be clearly indicated beneath his or her signature.

I hope this information is helpful. If you have further questions, please contact Mr. Marvin Shaw of this office at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure ref:106 d:12/12/95

The standard defines a "brake hose assembly" as a "brake hose, with or without armor, equipped with end fittings for use in a brake system..."

ID: nht75-2.1

DATE: 10/15/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: The B. F. Goodrich Company

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your August 30, 1975, letter concerning the Federal Motor Vehicle Safety Standards applicable to tires which the manufacturer expects to be used on both passenger cars and trailers.

S2. of Standard No. 109 specifies:

This standard applies to new pneumatic tires for use on passenger cars manufactured after 1948. . . .

Similarly, S3. of Standard No. 119 specifies:

This standard applies to new pneumatic tires designed for highway use on multipurpose passenger vehicles, trucks, buses, trailers and motorcycles manufactured after 1948. . . . (emphasis added)

These standards are mutually exclusive. Therefore, dual markings indicating compliance with the performance requirements of each are not permitted. A tire whose predominant contemplated use is on passenger cars is subject to Standard No. 109, even if the manufacturer knows it will also be marketed as a trailer tire. The choice of standard to which the tire will be certified should be made by the manufacturer. The NHTSA will accept a manufacturer's good faith determination of the applicable standard. You should note that if the tire is certified as conforming with Standard No. 119, its use as original equipment on passenger cars is prohibited by Standard No. 110. (The proposed Standard No. 120, however, would permit the use of passenger car tires on vehicles other than passenger cars, subject to a 10 percent load rating correction factor.)

Please note further that a tire which is subject to Standard No. 109 must be of a size designation listed in Appendix A of that standard. Conversely, any tire labeled with a size designation which is listed in that appendix is subject to Standard No. 109.

The final paragraph of your letter discussed "certain types and classes of equipment [determined by the NHTSA to be] non-trailers by definition." You appear to be referring to vehicles which are not "trailers" because they are not "motor vehicles" or items of "motor vehicle equipment" as the latter terms are defined by the National Traffic and Motor Vehicle Safety Act of 1966, as amended. No Federal Motor Vehicle Safety Standards apply to units which are neither motor vehicles nor motor vehicle equipment. The manufacturers of such units may equip them with tires of their choice.

ATTACH.

The B. F. Goodrich Company August 30, 1975

Office of Chief Counsel National Highway Traffic Executive Administration U.S. Department of Transportation

Dear Sir:

We at B. F. Goodrich seek an agency interpretation under current Rules, Regulations, Orders or Standards as to the specific performance requirements called for a passenger tire when its expected use is known or contemplated to be put into service as a trailer tire.

As you are undoubtedly aware, prior to the effective date of MVSS 119 (49CFR 571.119-effective March 1, 1975) certain sizes of passenger tires were used as trailer tires, particularly with certain light trailers such as boating and/or horse trailers. Light trailers of this class appear to meet the definition of a "trailer" as defined by 49CFR 571.3(c) as:

"Trailer means a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

For certain size tires. The B. F. Goodrich Company has passenger tires, which of course, in order to be marketed as a passenger tire must be in compliance with and meet all requirements of MVSS 109 (49CFR 571.109); in those instances where the tire has the potential for use on a trailer, must such tire additionally meet and comply with all requirements of MVSS 119?

We are aware that MVSS 120, as of current date, remains NPRM for which an effective date is not yet established and which when issued will, to a substantial degree, further identify and control use and application of trailer tires through the designation of rim sizes for such tires.

We additionally seek further clarification as to just how such a dual-use tire should be identified and marketed; e.g. should the tire be marked with the MVSS 109 identification (applicable when sold as a passenger tire) and separately marked with the MVSS 119 identification (applicable when sold as a trailer tire) or in the alternative, would dual identification demonstrating compliance with both passenger and non-passenger tires be acceptable?

Further, it has been brought to our attention that your agency has designated certain types and classes of equipment as non-trailers by definition; such non-trailer equipment is readily illustrated as compressor units, cement mixers, welding units and the like which are frequently used by the construction industry for portable movement in and about construction sites. Normally, such equipment is an integral unit in and by itself, in that it does not carry "persons or property" which are detachable from the unit, which factor could cause such units to be identified as "non-trailers" and accordingly not reach necessity of compliance with requirements recited by MVSS 119. It is understood that such units are not intended for highway use and that when transported from one construction site to another, they are carried on a transport trailer specifically designed for highway movement of such equipment. Many manufacturers of such units desire to continue the use of passenger tires for this type application and if prior interpretations of your agency has identified and placed such units outside the scope of S1 of MVSS 119 (e.g. "for tires for use on multi-purpose passenger vehicles, trucks, buses, trailers, and motorcycles"), we request that such classes of "construction use equipment" be identified so that our passenger tires may be properly marked for such application.

Very truly yours,

C. D. McCarty -- Staff Attorney

cc: R. D. Buehler; J. L. Ginn; W. G. Wilson

ID: NYDOTBILL

Mr. Tom Perreaut
New York State Department of Transportation
Office of Legal Affairs
Building 5, New York State Campus
Albany, NY 12232





Dear Mr. Perreaut:





This responds to your letter and telephone calls asking whether a New York state bill (S.1731-B, January 27,1999,) would be preempted by Federal law, in light of a possible inconsistency with Federal Motor Vehicle Safety Standard No. 111, "Rearview Mirrors." Your correspondence attaches a revised version of the bill and a letter dated April 16, 1999, from the Federal Highway Administration (FHWA) to your office regarding a previous version of the bill. Further, you attach a copy of a request for comments, dated June 12, 1996, based upon a granted petition for rulemaking to the National Highway Traffic Safety Administration (NHTSA) to require convex cross view mirrors on certain trucks (61 FR 30586). Based on our understanding of your correspondence and telephone calls, we believe that the answer to your question is a qualified no.

According to your correspondence, New York's proposed law states, in relevant part:

Every motor vehicle when driven or operated upon a public highway in the delivery of goods or services to residential or business locations shall be equipped with one or more cross-view back-up mirrors designed to allow the driver of such motor vehicle a view of the area behind the back of the motor vehicle.

For the purposes of the bill, a "motor vehicle" is defined as:

a vehicle that is registered or based in the state of New York, and that is equipped with a cube-style or enclosed delivery bay with a minimum eight feet six inches and a maximum of eighteen feet, provided that any such vehicle be a single unit vehicle which is operated for commercial purposes except for motor vehicles in interstate commerce and rental vehicles....

A "cross-view back-up mirror" is defined as "a mirror mounted on a motor vehicle and so located to enable the driver to view directly behind such vehicle."

Section 30103(b) of our statute, 49 U.S.C. 30103(b) (formerly 103(d) of the National Traffic and Motor Vehicle Safety Act), states in part:

when a motor vehicle safety standard is in effect under this chapter, 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. 111, Rearview Mirrors (49 CFR 571.111), requires side rear view mirrors on trucks with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) or more. The standard at S7.1 (for trucks with GVWRs of between 4,536 kg and 11,340 kg) and at S8.1 (for trucks with GVWRs of 11,340 kg or more) requires mirrors on both sides of the vehicle. The mirrors must be "located so as to provide the driver a view to the rear along both sides of the vehicle and shall be adjustable both in the horizontal and vertical directions to view the rearward scene." The use of the words "a view to the rear" and "rearward scene" does not indicate that the specified field of view extends directly behind the truck. Our review of the rulemaking history of the standard, including the notice we published at 61 FR 30856 (June 12, 1996), indicates that there is no Federal intent to regulate the area directly and immediately behind the type of vehicle in question. New York would thus be regulating a different aspect of performance (i.e., a different field of view) than that regulated by Standard No. 111.

If the State regulation addresses only the area directly behind the motor vehicle and therefore not the area addressed by Standard No. 111, it would not be preempted by 30103(b). However, it is difficult to respond categorically that the State regulation would not be preempted because you have provided little information on what the State would require. The State regulation would be preempted if it conflicts with Federal law, either by creating a situation in which manufacturers cannot comply with both the State and Federal laws, or by interfering in some way with another Federal motor vehicle safety standard (such as the field-of-view requirements for the lighting standard, 49 CFR 571.108).

If NHTSA were to issue a standard regulating the field of view of this area, inconsistent State laws would be preempted to the extent that they are not identical with the Federal standard. Of course, we would consider any relevant State laws when adopting a Federal standard. Currently, we have ongoing rulemaking considering establishing performance for rear cross view mirrors. We expect to publish an Advanced Notice of Proposed Rulemaking (ANPRM), following upon 61 FR 30586, on this in the future.

In addition, there may be preemption issues concerning Federal law administered by the Department's Federal Motor Carrier Safety Administration (FMCSA), which has jurisdiction over interstate motor carriers operating in the United States. FMCSA was established on

January 1, 2000, and was formerly a part of the Federal Highway Administration (FHWA). We note that Mr. Brian Temperine of the FHWA wrote your department on April 16, 1999, concerning preemption issues arising from a previous version of the bill in question. We suggest that you contact the FMCSA at (202) 366-4012 for information concerning preemption, FHWA's April 16, 1999, letter, and FMCSA's views of the current version of the bill.

In closing, we want to make clear that we are not providing any views with respect to the merits of the State mirror requirement to be enacted in New York. This letter only addresses the preemption issue you raised.

If you have any further questions, please feel free to contact Nancy Bell of my staff at this address or by telephone at (202) 366-2992.





Sincerely,





Frank Seales, Jr.
Chief Counsel





ref:111
d.8/3/00

ID: 08-006631 version 3

ID: 77-4.13

TYPE: INTERPRETATION-NHTSA

DATE: 10/03/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: Messrs. Eckert; Seamans; Cherin & Mellott

TITLE: FMVSR INTERPRETATION

TEXT: This is in reply to your letter of September 13, 1977, to Robert Aubuchon of this agency on behalf of your client Charles J. Sechan. Mr. Sechan has imported a 1976 Ferrari that does not comply with all applicable Federal motor vehicle safety standards and you have inquired whether, as a statutory manufacturer, he may apply for a temporary exemption from Motor Vehicle Safety Standard No. 215, Exterior Protection on the basis that compliance would cause him substantial economic hardship.

In our view he may not do so. Section 102(5) of the National Traffic and Motor Vehicle Safety Act includes in its definition of "manufacturer" any person "importing motor vehicles . . . for resale." Your client does not appear to be a manufacturer since he has imported only a single motor vehicle personally for his own use. There is nothing in your letter that indicates he is importing motor vehicles for resale.

Section 123 of the Act was not intended to apply to the occasional importer of a motor vehicle but to business entities engaged in the manufacture of motor vehicles. Thus the exemptions provided are "temporary," meaning that after the date of expiration motor vehicles produced by the manufacturer must comply with the Federal motor vehicle safety standards from which they were previously exempted. Exemptions do not provide retroactive coverage and apply only to vehicles manufactured after the effective date of the exemption's grant (See 49 CFR 555.7(f)).

I hope this answers your questions.

SINCERELY,

ECKERT, SEAMANS, CHERIN & MELLOTT

September 13, 1977

United States Department of Transportation National Highway Safety Administration

Attention Robert Abuschon:

Re: N41-22CUS

In a telephone conversation with you on September 2, 1977, you agreed to provide me with an updated listing of the various exemptions from the FMVSS which have been granted to various manufacturers and importers of motor vehicles. To date, I have not received this information.

As you may recall, I represent Sechan Coal Company, Inc. which, on July 21, 1977, imported a 1976 Ferrari, BB, Serial No. 18587. Mr. Charles J. Sechan, the President of Sechan Coal Company, is presently endeavoring to bring his automobile into compliance with the applicable FMVSS. In order to do so, Mr. Sechan wanted to know whether there were any exemptions granted from the FMVSS with respect to his vehicle.

Section 123(d)(1) of the National Traffic and Motor Vehicle Safety Act of 1966 provides:

"No manufacturer whose total motor vehicle production in its most recent year of production exceeds 10,000, as determined by the Secretary, shall be eligible to apply for an exemption under paragraph (1)(A) of subsection (a) of this section".

Paragraph (1)(A) of subsection (a) of Section 123 of the Act provides that an exemption may be granted upon an application by a "manufacturer" on the ground:

"(1)(A) that compliance would cause such manufacturer substantial economic hardship and that the manufacturer has, in good faith, attempted to comply with each standard from which it requests to be exempted".

Section 102(5) of the Act defines a "manufacturer" as follows:

"'Manufacturer' means 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". (Emphasis added)

As you know, the Ferrari Boxer is an extremely limited production vehicle which is assembled by hand at the Ferrari plant in Italy. Moreover, it appears from the sections of the Act quoted above that "any person importing motor vehicles . . . for resale" (Section 102(5)) would be considered a "manufacturer". Accordingly, if that "manufacturer" were to import an insubstantial number of vehicles, he would be eligible to apply for an exemption from the FMVSS pursuant to Section 123(a)(1)(A) of the Act, i.e., on the ground of substantial economic hardship.

According to an itemized list of Federal Motor Vehicle Standards provided as an enclosure to Form FL-80, which was sent to my client on August 12, 1977, the 1976 Ferrari Boxer may not comply with FMVSS, Section 215, relating to exterior protection. Preliminary inquiries made by my client reveal that FMVSS Section 215, requiring the replacement of original "bumpers" with those which will comply with that standard, is incredibly expensive.

Accordingly, I was wondering if you would be so kind as to provide me with an interpretation of Section 123 of the Act relating to exemptions. Specifically, I would like to know whether my client is eligible to apply for an exemption from Section 215 of the Federal Motor Vehicle Safety Standards pertaining to bumpers on the 1976 Ferrari Boxer he has imported into this country on the ground of substantial economic hardship.

Please regard this request as merely an inquiry. My client fully intends to use his best efforts to bring his vehicle into compliance with all applied standards from which his vehicle is not exempted. However, before expending the sums of money necessary to do so, he requested that this inquiry be made.

Your cooperation in this matter will be appreciated.

Mark A. Willard

ID: nht69-1.14

DATE: 03/03/69

FROM: DEAN F. NIEDERNHOFER FOR CLUE D. FERGUSON -- NHTSA

TO: Splintex Belge

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letters of January 16, 1969, and February 3, 1969, concerning safety glazing in motor vehicles.

Referring to your request to use marking as described in the second paragraph of your letter, I believe you have confused the two-digit manufacturer's code number specified in Docket 23 with the model number specified in Section 6 of USASI Standard 226.1-1965.

Federal Motor Vehicle Safety Standard No. 205, Glazing Materials incorporates USASI Standard 226.1-1955 by reference. Marking of the glazing materials must comply with Section 6, Marking of Safety Glazing Materials. Included in this marking is the requirement for a model number related to a detailed description of a specific glazing material. The example,(Illegible Word), is a model number assigned by you in accordance with foot note #24 at the bottom of page 29 of(Illegible Word) Standard 226.1-1986.

The two-digit manufacturer's code number that follows the "LOT" symbol is used, at the option of the glass manufacturer, as an alternative method of complying with that certification requirements specified in Standard No. 205. This "DOT" symbol followed by a two-digit manufacturer's code number should be added to the marking you should in your letter.

Following are my answers to the questions asked in your letters

Question (1) Must we add the symbol "DOT" somewhere in the above marking"?

Question (2) Can you agree with the proposed marking without taking into consideration that our clear laminated M.I.B glass has been approved, or are was compelled to submit our coloured glass to a laboratory and ask for a new approval?

Question (3) If you extend our AS.1-M.11 approval to the said AS3-26 type, as we hope, is this extension valid for all the American States, including those affiliated to the A.A.M.V.A.? If so, do you advise all the States of this extension or shall we do it?

Answer to Question (1) Only if you wish to avail yourself of the alternative method of certification specified in Standard No. 205 Amendment (33 P2 14152).

Answer to Questions (2) and (3) The approval of glazing materials to which you refer is a State approval independent of the U.S. Federal government. Those questions should be directed to the individual States or A.A.N.V.A. for answer.

I am taking the liberty of assigning a two-digit manufacturer's code number to your company on the assumption that you wish to avail yourself of the alternative method of certification.

Splintex Balge S.A. is assigned number 24. This number should appear after the characters "DOT" when you certify your glazing materials by the alternative means published in the Federal Register, Vol. 33, No. 183 - Thursday, September 19, 1968, (enclosed).

I am sorry for the delay in answering your initial letter.

Sincerely,

Enclosure

SPLINTEX BELGE

Societe Anonyme

January 16, 1969

Director of the National Highway Safety Bureau.

FEDERAL HIGHWAY ADMINISTRATION

Department of Transportation.

Gentlemen,

We are manufacturers of safety glass, namely for the automobile industry, and have had several safety glass types approved, the last ones being:

1/4" mm thick H.I. laminated: Splintex Gilly HI/AS1-M11.

7/32" mm thick H.I. laminated: Splintex Gilly HI/AS1-M12.

We supply a constructor of busses with laminated glass pieces placed along edges of the roof, as shown on the attached picture. This laminated glass is 1/4" thick and is composed of a H.I. interlayer but also two coloured ones with finally just 2 light transmittance. We have in hand information you sent to our customer (Title 23 - Chapter II/Dockets n degree 23 and 29 - Notice(Illegible Word) May we beg you, on this ground, if we may use, for the described glass, an AS3-28 marking with a two digit code number, for example M15; if so, our marking would be

SPLINTEX Height in accordance with U.S.A.S.I.

GILLY Height in accordance with U.S.A.S.I.

AS.3-26-M.15 requirements.

LAMINATED

Our other questions are:

1) Must we add the symbol "DOT" somewhere in the above marking?

2) Can you agree with the proposed marking without more, taking in consideration that our clear laminated H.I. 1/4" glass has been approved, or are we compelled to submit our coloured glass to a laboratory and ask for a new approval?

3) If you extend our AS.1-M.11 approval to the said AS3-26 type, as we hope, is this extension valid for all the American States including those affiliated to the A.A.M.V.A.? If so, do you advise all the States of this extension or shall we do it?

As this is a very important and urgent question, we beg you for a prompt air-mail answer and hope you will give us full details about the other steps we should have to undertake.

Awaiting your kind news and thanking you beforehand for all your help, we remain, Gentlemen,

Very truly yours.

LINTEX BELGE

Societe Anonyme

Director of the National Highway Safety Bureau,

FEDERAL HIGHWAY ADMINISTRATION

Department of Transportation.

Gentlemen,

We beg to remind you our letter dated 16th. January concerning the marks we should put on safety glasses for roof of busses and an eventual approval of this glass material.

As we have an order from a customer, bus constructor who exports vehicles to the U.S.A., it is of the utmost urgency for us to be able to answer our client's questions and requirements.

We apologize for our insistance but hope you will understand our trouble and answer us promptly.

We thank you again and remain, Gentlemen,

Very truly yours.

ID: nht88-2.76

TYPE: INTERPRETATION-NHTSA

DATE: 07/18/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: LISA CAPPALLI -- GAGER, HENRY & NARKIS

TITLE: NONE

TEXT: This is a response to your letter of last year to Ms. Tilghman of my staff, seeking an interpretation of Standard 125, Warning Devices (49 CFR @ 571.125). I apologize for the delay in this response. Specifically, you asked whether your client may procee d with the manufacture and distribution of a warning device, which you described further as an equilateral triangle with legs of 10 3/8 inches each. You also enclosed a diagram of the proposed device.

Let me begin by explaining that your client does not need approval from this agency to manufacture or distribute this product. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A); Safety Act) provides that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any . . . item of motor vehicle equipment manufactured on or after the date any applicable Fe deral motor vehicle safety standard takes effect under this title unless it is in conformity with such standard . . ." Section 114 of the Safety Act (15 U.S.C. 1403) establishes a certification process under which each manufacturer is required to certify that its products meet all applicable Federal safety standards. Therefore, your client, as a manufacturer of motor vehicle equipmet, must certify that this product complies with all applicable standards. This agency has no authority under the Safety A ct to approve, certify, or otherwise endorse any commercial product.

The warning device your client plans to produce is motor vehicle equipment, within the meaning of section 102(4) of the Safety Act (15 U.S.C. 1391(4)). Thus, the question is whether this warning device complies with applicable safety standards.

Paragraph S3 of Standard 125 reads as follows: "This standard applies to devices, without self-contained energy sources, that are designed to be carried in motor vehicles and used to warn approaching traffic of the

presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle." Since your client's product falls within this description, your client must certify that the product complies with all requirements of Standard 125. Se ction 108(b)(2) of the Safety Act (15 U.S.C. 1397(b)(2)) requires your client to exercise "due care" in making any such certification.

Based on the description in your letter, it does not appear that your client can certify that this device complies with one of the requirements in Standard 125. Paragraph S5.2.2 of Standard 125 states that, "Each of the three sides of the triangular port ion of the warning device shall be not less than 17 and not more than 22 inches long, and not less than 2 and not more than 3 inches wide." According to your description, the sides of your client's proposed device would be only 10 3/8 inches long. Your client will have to increase the length of the sides in order to certify that this proposed warning device complies with Standard 125. We do not have enough information to offer any opinions as to whether this product appears to comply with the other re quirements of Standard 125.

You asked for information on how your client could obtain an exemption from Standard 125 if necessary. There is no provision in the Safety Act for exempting items of motor vehicle equipment from any applicable safety standard. However, section 157 of th e Safety Act (15 U.S.C. 1417) gives this agency the authority to exempt equipment manufacturers from the requirement to give notice to owners and to remedy noncompliances with applicable standards, if the agency determines that the noncompliance is incon sequential as it relates to motor vehicle safety. The procedures for implementing this statutory authority are set forth in 49 CFR Part 556, Exemption for Inconsequential Defect or Noncompliance.

Since your client plans to become a manufacturer subject to the requirements of the Safety Act, I am enclosing a copy of a general information sheet that briefly outlines the new manufacturer's responsibilities and explains how to get copies of relevant regulations. If you have some further questions or need further information on this subject, please contact Joan Tilghman of my staff at this address, or by telephone at (202) 366-2992.

Enclosure

ID: 2880o

Lisa Cappalli, Esquire
Gager, Henry & Narkis
One Exchange Place
P.O. Box 2480
Waterbury, CT 06722-1791

Dear Ms. Cappalli:

This is a response to your letter of last year to Ms. Tilghman of my staff, seeking an interpretation of Standard 125, Warning Devices (49 CFR 571.125). I apologize for the delay in this response. Specifically, you asked whether your client may proceed with the manufacture and distribution of a warning device, which you described further as an equilateral triangle with legs of 10 3/8 inches each. You also enclosed a diagram of the proposed device.

Let me begin by explaining that your client does not need approval from this agency to manufacture or distribute this product. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A); Safety Act) provides that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any ... item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." Section 114 of the Safety Act (15 U.S.C. 1403) establishes a certification process under which each manufacturer is required to certify that its products meet all applicable Federal safety standards. Therefore, your client, as a manufacturer of motor vehicle equipment, must certify that this product complies with all applicable standards. This agency has no authority under the Safety Act to approve, certify, or otherwise endorse any commercial product.

The warning device your client plans to produce is motor vehicle equipment, within the meaning of section 102(4) of the Safety Act (15 U.S.C. 1391(4)). Thus, the question is whether this warning device complies with applicable safety standards.

Paragraph S3 of Standard 125 reads as follows: "This standard applies to devices, without self-contained energy sources, that are designed to be carried in motor vehicles and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle." Since your client's product falls within this description, your client must certify that the product complies with all requirements of Standard 125. Section 108(b)(2) of the Safety Act (15 U.S.C. 1397(b)(2)) requires your client to exercise "due care" in making any such certification.

Based on the description in your letter, it does not appear that your client can certify that this device complies with one of the requirements in Standard 125. Paragraph S5.2.2 of Standard 125 states that, "Each of the three sides of the triangular portion of the warning device shall be not less than 17 and not more than 22 inches long, and not less than 2 and not more than 3 inches wide." According to your description, the sides of your client's proposed device would be only 10 3/8 inches long. Your client will have to increase the length of the sides in order to certify that this proposed warning device complies with Standard 125. We do not have enough information to offer any opinions as to whether this product appears to comply with the other requirements of Standard 125.

You asked for information on how your client could obtain an exemption from Standard 125 if necessary. There is no provision in the Safety Act for exempting items of motor vehicle equipment from any applicable safety standard. However, section 157 of the Safety Act (15 U.S.C. 1417) gives this agency the authority to exempt equipment manufacturers from the requirement to give notice to owners and to remedy noncompliances with applicable standards, if the agency determines that the noncompliance is inconsequential as it relates to motor vehicle safety. The procedures for implementing this statutory authority are set forth in 49 CFR Part 556, Exemption for Inconsequential Defect or Noncompliance.

Since your client plans to become a manufacturer subject to the requirements of the Safety Act, I am enclosing a copy of a general information sheet that briefly outlines the new manufacturer's responsibilities and explains how to get copies of relevant regulations. If you have some further questions or need further information on this subject, please contact Joan Tilghman of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

ref:125 d:7/18/88

ID: 00433.ztv

Mr. Randy W. McGuire
Vice President of Engineering
Fontaine Trailer Company
P.O. Box 619
Haleyville, AL 35565

Dear Mr. McGuire:

This is in reply to your letter of September 17, 2002, asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment.

You requested this interpretation in the context of rear lighting equipment on three flatbed trailers depicted in its manufacturers sales brochure, which you enclosed. The aspect of the rear lighting that is the basis of your first question is the array of five identical lamps that appear in the center of the rear of two trailers below the uppermost of the two horizontal conspicuity treatments extending across the width of the trailer. You asked whether this arrangement is considered to comply with Standard No. 108.

The answer is no. Tables I and II of Standard No. 108 requires that motor vehicles including trailers with an overall width of 2032 mm (80 inches) or more be equipped with systems of front and rear identification lamps. Each system consists of three amber or red lamps with lamp centers spaced not less than 6 nor more than 12 inches apart. Thus, an identification lamp system complying with Standard No. 108 cannot have more than three lamps. You have correctly interpreted Standard No. 108 to your prospective customers who have expressed an interest in having an array of more than three such lamps. Even if we were to regard the center three lamps as a conforming system of identification lamps, the two lamps on each side of the three-lamp array would be considered additional lighting equipment and prohibited by S5.1.3 of Standard No. 108. S5.1.3 allows additional lighting equipment only if it does not impair the effectiveness of required lighting equipment. In this instance, the two additional lamps would impair the effectiveness of the three-lamp identification system, which is intended to provide an unambiguous indication of the presence of a wide vehicle on the roadway.

You have asked several questions relating to S5.7, Conspicuity Systems. The first that we shall answer is: "Would the lights all along the horizontal be deemed as a suitable alternative to having full-length reflective tape."

S5.7 provides only two alternatives for compliance: the use of either retroreflective tape or reflex reflectors. The use of lamps alone on the horizontal member would be a noncompliance with S5.7.1.4.1(c). Although you stated that "in some instances the lights are all along the horizontal member," in none of the three rear end configurations shown in the sales brochure are lamps deployed across the rear underride protection device.

As a foundation for the remaining two questions, you stated your understanding that S5.7.1.4.1(a) requires "a piece of reflective sheeting full width across the horizontal member of a rear underride protection device." This is correct; however the requirement is in S5.7.1.4.1(c), not (a). You first asked "Would . . . use of lights on the horizontal member be deemed a noncompliance?"

Standard No. 108 is very specific about the types of lamps, reflective devices, and associated equipment that may be used as original equipment on a motor vehicle. It specifies location, color, and, in the case of conspicuity treatment, the dimensions of the retroreflective sheeting. S5.7.1.4.1(c) requires that conspicuity treatment be applied "full width across the horizontal member of a rear underride protection device."The interruption of the conspicuity treatment by the array of five lamps, in our view, would create a noncompliance with S5.7.1.4,1(c). In addition, each of the three trailers is equipped with two vertical metal strips, each of which bisects a segment of white retroreflective sheeting. This also, we believe, creates a noncompliance with S5.7.1.4.1(c).

It is also your understanding that S5.7.1.3(b) "requires that no white sheeting shall be located closer than 75 mm to the edge of any luminous lens area of any red or amber lamp that is required by the standard." Your understanding is correct, but the requirement appears in S5.7.1.4(b). You also asked:"Would the lights used in combination with the reflective sheeting be compliant even though the white sheeting is directly adjacent to the red lamps?"

The restriction of S5.7.1.4(b) applies only if the red or amber lamp is required by Standard No. 108. The lower array of five lamps is not lighting equipment required by Standard No. 108. As noted above, the array interrupts the conspicuity sheeting, and, in our view, would create a noncompliance with S5.7.1.4.1(c).

I hope that this responds to your questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref.108
d.3/7/03

ID: 8940

Mr. Sam C. Nigro
Bus Product Manager
Webasto Thermosystems
1598 E. Lincoln
Madison Heights, MI 48071

Dear Mr. Nigro:

This responds to your letter about auxiliary heaters fueled by compressed natural gas (CNG) and liquid natural gas (LNG) for installation on buses using those alternative fuels. You stated that your company currently manufactures auxiliary heaters for diesel fueled buses, and is interested in developing heaters that would "burn CNG and LNG same as the engine." In a telephone conversation with Marvin Shaw of my staff, you explained that you would like information about NHTSA's current requirements for auxiliary heaters on alternative fueled buses and the agency's future plans in this area.

I am pleased to have this opportunity to explain our regulations to you. By way of background information, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act (Safety Act, 15 U.S.C. 1381, et seq.), it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment comply with applicable Federal motor vehicle safety standards (FMVSS's). The following represents our opinion based on the facts provided in your letter.

NHTSA does not have any safety standards specifically covering auxiliary heaters of any kind, and I am not aware of any plans to issue standards in this area. Nevertheless, an auxiliary heater is an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. If you or NHTSA determines that a safety- related defect exists, you must notify purchasers of your product and remedy the problem free of charge. (This responsibility is borne by the vehicle manufacturer in cases in which the heater is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer that fails to provide notification of or remedy for a defect may be subject to a civil penalty of up to $1,000 per violation.

As Mr. Shaw informed you on the telephone, earlier this year NHTSA proposed to issue a safety standard that would apply to CNG tanks (i.e., containers designed to store CNG as motor vehicle fuel on-board a motor vehicle) and vehicles using CNG as a fuel (58 FR 5323, January 21, 1993). If this proposed standard is adopted, it would affect your product in the following manner.

If your heater were installed as original equipment on a new vehicle, the vehicle manufacturer is required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's, including the CNG fuel system standard. If the heater were added to a new, previously- certified vehicle (e.g., a new completed bus), the person who adds the system would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. These certification requirements apply to the vehicle manufacturer and alterer regardless of whether the heater is connected to the vehicle's fuel system. Of course, if the heater is connected to the vehicle's fuel system, the vehicle's compliance with the CNG standard should be carefully scrutinized.

If the heater were installed on a used vehicle by a vehicle manufacturer, distributor, dealer or repair business, the installer would not be subject to the certification requirements outlined above. Instead, the installer would have to ensure that it did not knowingly render inoperative the compliance of the vehicle with any applicable safety standard, including the CNG standard. This is required by 108(a)(2)(A) of the Safety Act. If the modification of the vehicle entailed connecting the heater to the vehicle's fuel system, compliance with the CNG standard would be especially germane to whether 108(a)(2)(A) were violated.

The prohibition of 108(a(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with the FMVSS's. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

The certification responsibilities discussed above would affect vehicle manufacturers even if the proposed CNG standard is not adopted or is not yet effective when you market your product. Except for FMVSS 301, which sets fuel system integrity requirements for gasoline and diesel-powered buses under 10,000 pounds GVWR, all of the FMVSS's that apply to a diesel- or gasoline-powered vehicle now apply to a CNG-powered vehicle. A manufacturer of a CNG-powered vehicle who installs your heater as original equipment must certify the vehicle to those standards, regardless if the CNG FMVSS is among them. Similarly, a vehicle alterer would have to certify that the vehicle, as altered, complies with all applicable FMVSS's.

The "render inoperative" prohibition would also apply even in the absence of a CNG FMVSS. The commercial entity listed in 108(a)(2)(A) who installs the heater on a CNG-powered vehicle would have to ensure that it did not knowingly render inoperative the compliance of the vehicle with any FMVSS that applies to the vehicle, even if a CNG standard is not among them.

I am enclosing for your information a copy of NHTSA's proposed FMVSS for CNG tanks and vehicles. Also enclosed is a fact sheet titled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and a booklet entitled Federal Motor Vehicle Safety Standards and Regulations.

As you are aware, the Federal Highway Administration has issued a regulation applicable to heaters on commercial vehicles. (49 CFR 393.77). You can contact the FHWA for an interpretation of its regulations at the following address:

Theodore McConnell Chief Counsel Federal Highway Administration 400 7th Street, SW Washington, D.C. 20590

I hope this information is helpful. Please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992 if you have any further questions or need additional information.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA#303 d:10/5/93