ID: nht94-7.28

DATE: March 23, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Richard A. Zander -- AlliedSignal Automotive Proving Grounds (New Carlisle, IN)

TITLE: None

ATTACHMT: Attached to letter dated 5/19/93 from Richard A. Zander to NHTSA Office of Chief Council

TEXT:

This responds to your letter asking about the fade and recovery requirements of Federal Motor Vehicle Safety Standard No. 105, Hydraulic Brake Systems. I apologize for the delay in our response. You noted that the standard requires vehicles with a GVWR of 10,000 pounds or less to be capable of making a specified number of fade stops "at a deceleration not lower than 15 fpsps for each stop." You stated that you are aware of a number of different understandings within the industry of the quoted phrase, and requested an interpretation as to whether vehicles must be capable of maintaining an average deceleration of at least 15 fpsps or a minimum deceleration of at least 15 fpsps. As discussed below, vehicles must be capable of maintaining a minimum deceleration of at least 15 fpsps.

By way of background information, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. S 1381, et seq.) authorizes the National Highway Safety Administration (NHTSA) to issue safety standards applicable to new motor vehicles and items of motor vehicle equipment. NHTSA does not, however, approve motor vehicles or motor vehicle equipment. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

Manufacturers must have some independent basis for their certification that a product complies with all applicable safety standards. This does not necessarily mean that a manufacturer must conduct the specific tests set forth in an applicable standard. Certifications may be based on, among other things, engineering analyses, actual testing, and computer simulations. Whatever the basis for certification, however, the manufacturer must certify that the product complies with a standard as it is written, i.e., that the vehicle will pass all applicable requirements if it is tested exactly according to the standard's test conditions and other specifications.

Standard No. 105's fade and recovery test requirements are set forth in S5.1.4. These requirements must be met under the conditions prescribed in S6, when tested according to the procedures set forth in S7. See S5.1. The purpose of the fade and recovery test requirements is to help ensure that brakes retain adequate stopping capacity during and after exposure to conditions caused by prolonged or severe use, such as long, downhill driving.

The standard specifies two fade and recovery tests for vehicles with a GVWR of 10,000 pounds or less. Each of the fade and recovery tests consists of three parts: (1) baseline check stops, (2) fade stops, and (3) recovery stops. The requirements for the fade stops are set forth in S5.1.4.2(a), which states that:

Each vehicle with a GVWR of 10,000 lbs or less shall be capable of making 5 fade stops (10 fade stops on the second test) from 60 mph at a deceleration not lower than 15 fpsps for each stop, followed by 5 fade stops at the maximum deceleration attainable from 5 to 15 fpsps."

As noted, S5.1.4.2(a) must be read in conjunction with S7.11.2.1, which sets forth the procedure for conducting the fade stops. It reads, in relevant part, as follows:

Make 5 stops from 60 mph at 15 fpsps followed by 5 stops at the maximum attainable deceleration between 5 and 15 fpsps for each stop. ... Attain the REQUIRED DECELERATION within 1 second and, AS A MINIMUM, MAINTAIN IT for the remainder of the stopping time.

Control force readings may be terminated when the vehicle speed falls to 5 mph. (Emphasis added.)

The words "required deceleration" in S7.11.2.1 refer to 15 fpsps. (That value is set forth both in S5.1.4.2(a) and the first sentence of S7.11.2.1.) Thus, in conducting fade stops, within one second of beginning a stop, a deceleration of 15 fpsps must be attained. S7.11.2.1 then specifies that, "as a minimum," the required deceleration (15 fpsps) must be maintained for the remainder of the stopping time. (The word "it" in the highlighted sentence refers back to the phrase "required deceleration.") Thus, after a deceleration of 15 fpsps is attained (within one second of beginning the stop), the deceleration cannot drop below 15 fpsps even momentarily.

You stated that you are aware of the following three understandings within the industry concerning the meaning of this requirement:

1. The average deceleration for the stop must be greater than 15 fpsps. The average deceleration is calculated one second after the stop begins to a vehicle speed of 5 mph.

2. After 1 second the deceleration can not drop below 15 fpsps even for an instant. If the deceleration drops below 15 fpsps at any time it is considered a failure even if the average deceleration is greater than 15 fpsps.

3. The average deceleration for the stop must be greater than 15 fpsps and the deceleration must be greater than 15 fpsps for at least 75% of the stop excluding the first second of the stop.

Of the three understandings, the first and third are inconsistent with the plain wording of S7.11.2.1 which specifies that, after the required 15 fpsps deceleration is attained (within one second of beginning the stop), it must, as a MINIMUM, be maintained for the remainder of the stopping time. The first and third understandings would, among other things, replace S7.11.2.1's specification that the 15 fpsps deceleration be maintained as a "minimum" with one that it be maintained as an "average." The second understanding is largely correct. It is correct to state that, in conducting a fade stop, after a 15 fpsps deceleration is attained (within one second of beginning the stop), the deceleration cannot drop below 15 fpsps even

for an instant. However, if the deceleration did drop below 15 fpsps, that would not necessarily indicate a "failure" but might simply be an invalid test. As you note in your letter, a deceleration might fall below 15 fpsps because the driver did not compensate for in-stop fade. However, if a vehicle was unable to pass Standard No. 105's fade stop test requirements at the specified deceleration rates, it would not comply with the standard, notwithstanding the fact that it might be able to pass the requirements at slightly lower deceleration rates.

You stated in your letter that the second understanding appears to not consider the intent of the fade procedure, the intent being that a vehicle must be capable of making multiple high deceleration stops in a short period of time without drastic changes in effectiveness. As discussed above, the purpose of the fade and recovery test requirements is to help ensure that brakes retain adequate stopping capacity during and after exposure to conditions caused by prolonged or severe use, such as long, downhill driving. If a vehicle was unable to pass Standard No. 105's fade stop test requirements at the specified deceleration rates, it would indicate inadequate stopping capability during conditions caused by prolonged or severe use, such as long, downhill driving.

You also stated that in the Laboratory Test Procedure for Standard No. 105, published by NHTSA's Office of Vehicle Safety Compliance (OVSC), the data sheet for the fade stops requests the following information for the deceleration: "Average Sust Decel." You stated that it therefore appears that NHTSA's interpretation of the phrase "at a deceleration not lower than 15 fpsps for each stop" is "the average sustained deceleration."

It is incorrect to interpret the OVSC Laboratory Test Procedures as limiting the requirements of the Federal motor vehicle safety standards. I call your attention to the following note which is set forth at the beginning of the Laboratory Test Procedure:

The OVSC Laboratory Test Procedures, prepared for use by independent laboratories under contract to conduct compliance tests for the OVSC, are not intended to limit the requirements of the applicable FMVSS(s).

In some cases, the OVSC Laboratory Test Procedures do not include all of the various FMVSS minimum performance requirements. Sometimes, recognizing applicable test tolerances, the Test Procedures specify test conditions which are less severe than the minimum requirements of the standards themselves. Therefore, compliance of a vehicle or item of motor vehicle equipment is not necessarily guaranteed if the manufacturer limits certification tests to those described in the OVSC Laboratory Test Procedures.

I am enclosing a copy of the most recent version of the Laboratory Test Procedure for Standard No. 105, in response to your request. I hope this information is helpful. If you have any further questions, please feel free to contact David Elias of my staff at this address or by telephone at (202) 366- 2992.

ID: 10629

Courtney M. Price, Esq.
Reid & Priest
701 Pennsylvania Avenue, N.W.
Washington, DC 20004

Dear Ms. Price:

This responds to your questions about how this agency's regulations apply to a product known as a Brake Locker that is manufactured by your client, Maatzorit. You requested this agency to confirm your understanding that installation of the Brake Locker is not precluded by Federal Motor Vehicle Safety Standard (FMVSS) No. 105, Hydraulic Brake Systems, FMVSS No. 106, Brake Hoses, or Section 108(a)(2)(A) of what you refer to as the National Traffic and Motor Vehicle Safety Act ("Safety Act.").

According to your letter, the Brake Locker prevents the theft of a parked vehicle by locking its brakes, without affecting brake usage while the vehicle is driven by an authorized driver. You stated that the Brake Locker is installed in the engine compartment on the brake fluid line between the brakes and the brake pump. An electronic coded transmitter is used to activate a motor which in turn activates a check valve, thereby preventing the release of the brakes by restricting the flow of brake fluid. When the check valve is activated, you state that "every press on the brake pedal causes the brakes to be locked."

The National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the United States Code to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, Chapter 301 establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The agency periodically tests new vehicles and items of equipment for compliance with the standards.

Nothing in FMVSS No. 105 nor FMVSS No. 106 precludes the inclusion of a hydraulic brake lock, nor does NHTSA have any other regulations specifically covering such a product. Therefore, Maatzorit, as the device's manufacturer, would not have any certification responsibilities. Nevertheless, the requirements of FMVSS No. 105 are relevant to a hydraulic brake lock. That standard specifies a number of brake performance requirements to which the vehicle manufacturer must certify compliance. Since the installation of a hydraulic brake lock requires the installation of a check valve on the brake fluid line between the foundation brakes and the brake pump, it is possible that the installation of such a device could affect a vehicle's compliance with FMVSS No. 105.

If the Brake Locker is installed as original equipment on new vehicles prior to the first sale of the vehicle to a consumer, then the vehicle manufacturer is required to certify that with the Brake Locker installed, the vehicle complies with all applicable FMVSSs, including FMVSS No. 105 and FMVSS No. 106. A vehicle manufacturer's specific certification responsibilities depend on when the brake locker is installed and are set forth in 49 CFR Parts 567 and 568. For instance, if a vehicle has already been certified by the vehicle manufacturer but has not yet been sold to the consumer, then the person doing the installation after that time would be considered to be an "alterer" who would have to certify that the vehicle, as altered, continues to comply with all of the safety standards affected by the alteration.

If the Brake Locker is installed after the first consumer purchase, then 49 U.S.C. 30122 is relevant to your client's product. That section provides that

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.

This provision would prohibit any of the named commercial entities from installing a Brake Locker, if such installation makes inoperative the compliance of the vehicle with any applicable safety standard, such as FMVSS No. 105. For example, if the Brake Locker, caused the vehicle to no longer comply with the parking brake or service brake requirements in FMVSS No. 105, then installation of the system would make inoperative compliance with that standard. Any violation of this prohibition is subject to a potential civil penalty of up to $1,000 for each violation. Please note that the "make inoperative" provision does not prohibit owners from modifying their vehicles, even if such modification adversely affects the compliance of the vehicle with safety standards.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel ref:567#105 d:3/8/95 In 1994, Congress codified the Safety Act. The new citation for 108(a)(2)(A) is 49 U.S.C. 30122. In addition, please be aware that on February 3, 1994, NHTSA issued FMVSS No. 135 Passenger Car Brake Systems that will eventually supersede FMVSS No. 105 with respect to passenger cars. Please note that your client's product will be subject to the same responsibilities, regardless of which FMVSS applies.

ID: 1985-01.10

TYPE: INTERPRETATION-NHTSA

DATE: 01/11/85

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHSTA

TO: Kazutoshi Kasagi -- Chief Inspector, International Trade and Industry Inspection Institute Ministry of International Trade and Industry (Japan)

TITLE: FMVSS INTERPRETATION

TEXT: Mr. Kazutoshi Kasagi Chief Inspector Internationally Agreed Safety Division International Trade & Industry Inspection Institute Ministry of International Trade & Industry Japanese Government 15-1, 6 Chome Ginza Chuo-ku Tokyo, Japan

This is in reply to your letter of November 13, 1984, with respect to interpretations of the motorcycle headlighting requirements of Federal Motor Vehicle Safety Standard No. 108, and SAE J584.

You have asked "whether other lighting systems than referred in S4.1.1.34, such as non-sealed beam head lamp with two bulbs, are acceptable or not." The answer is yes. Non-sealed lamps meeting the requirements of SAE J584 are acceptable, including those with two bulbs, as the "At-Focus Tests" paragraph of J584 is directed to "light source or sources."

Your next question is whether photometric compliance is judged when one light is on or two, including the maximum permissible output of 75,000 cd. The answer to this question depends on the design of the lamp; if it is designed so that both bulbs operate simultaneously, then photometrics including maximum output are determined with both bulbs operating. If the design is such that one bulb produces lower beam and the other the upper beam, then compliance is judged by that method of operation. Should one bulb produce both lower and upper beams and the other bulb perform an unregulated lighting function, then the photometric compliance would be judged with only the bulb used for the regulated function. In this case, however, the unregulated bulb must not interfere with the effectiveness of the headlamp. This also answers your final question about conduct of the out-of-focus test. It is to be conducted according to the design intent of the operation of the headlamp, i.e. the design function of each bulb or bulbs.

You have also asked about the geometrical center of a design when one of two bulbs (both with an upper beam and a lower beam filament apparently) is on. Operation of only one bulb alone would result in an assymetrical lighting display off the vehicle's centerline. This is permitted by S4.1.1.34 of Standard No. 108 for the sealed beam lighting systems specified therein. Therefore, we could not logically disapprove of it for unsealed headlighting systems. However, if only one bulb performed both the lower beam function and the upper beam, and the other bulb performed an unregulated lighting function, then the bulb providing the lower/upper the lower beam function and the upper beam, and the other bulb performed an unregulated lighting function, then the bulb providing the lower/upper beams must be located on the vehicle's vertical centerline.

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

Sincerely,

Frank Berndt Chief Counsel

November 13, 1984

Mr. Frank Berndt, Chief Counsel Office of Vehicle Safety Standards, National Highway Traffic Safety Administration, DOT, 400 Seventh Street, S.W., Washington, D.C. 20590, U.S.A.

Dear Mr. Frank Berndt:

This is to ask you about interpretation and applicability of FMVSS 108 and SAE J584(Motorcycle Headlamp). Before asking questions, I'm pleased to introduce our organization. International Trade and Industry Inspection Institute (ITIII) is an affiliated inspection organization of Ministry of International Trade and Industry, Japanese Government and has three main functions. ITIII itself conducts test and inspections of industrial products under the control of MITI and ITIII administrates private inspection organizations, consumer bodies and manufacturers in terms of inspection and test. ITIII also is involved in the drafting process of inspection standards and inspection method of industrial products. ITIII has been an approved laboratory of lighting equipments by American Association of Motor Vehicle Administrators (AAMVA) and we have regular visits of Mr. Bardel and Mr. Cardarelli from AAMVA. We keep close relations with AAMVA for many years.

Inquiry

FMVSS 108 S4. 1. 1.34 specifies acceptable lighting system of motor cycles. This arises the question of whether other lighting systems than referred in S4.1.1.34, such as non-sealed beam head lamp with two bulbs, are acceptable or not. If it is acceptable, we have three questions to ask you further with regard to SAE J584.

Question 1

Which case should non-sealed beam lamp comply with specified photometric value of SAE J584 either when one bulb is lighted on or two bulbs are on? How should we interpret the requirement of Maximum 75000 cd in each case?

Question 2

Which should be the case of geometrical center when one bulb is on as illustrated below?

"INSERT GRAPHIC"

Question 3

How should we conduct out of focus test of the applicable case asked in question 1?

I hope this contact will be the first step to create good relation with your organization and I appreciate your quick response to our question.

Best regards,

Kazutoshi Kasagi

Chief Inspector, Internationally Agreed Safety Division

ID: 1985-04.42

TYPE: INTERPRETATION-NHTSA

DATE: 12/12/85

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Aslam Khan

TITLE: FMVSS INTERPRETATION

TEXT:

December 12, 1985 Mr. Aslam Khan Mutual Trading Corporation 222 West Adams Chicago, Il 60606 Dear Mr. Khan: This responds to your letter to this agency, asking how our regulations affect the importation and sale of tires in the United States. There are several applicable requirements set forth in our standards and regulations, which are discussed below. All tires imported into the United States for use on passenger cars must be certified as complying with Federal Motor Vehicle Safety Standard No. 119. I have enclosed copies of both of these standards for your information. You will see that the standards specify performance requirements (strength, endurance, high speed, and, for passenger car tires only, resistance to bead unseating), marking requirements (treadwear indicators and labeling information), and tire and rim matching information requirements which must be satisfied by each tire sold in the United States. With respect to these performance requirements, you stated that the tires' manufacturers "have our approval for the DOT markings." The United States does not give "approval" for certification markings. For the purposes of our safety standards, a tire manufacturer must itself certify that its tires comply with all the requirements of the applicable safety standard. Once a tire manufacturer determines that its tires satisfy the applicable requirements, it certifies that compliance by molding the letters "DOT" on one sidewall of each certified tire. For purposes of enforcement of the safety standards, this agency conducts spot checks of tires after they have been certified, by purchasing and testing the tires in accordance with the applicable standard. If the tires pass the test, no further steps are taken. If the tires fail the tests and are determined not to comply with the applicable standards or if it is determined that the tires contain a safety-related defect, the manufacturer of the tires is required to remedy the problem. Your company would be considered the manufacturer of the tires, because you are the brand name owner and the importer. Section 154(a)(2)(B) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1414(a)(2)(B)) specifies that, in the case of tires that fail to comply with a standard or contain a safety-related defect, the manufacturer may elect to either: (1) repair the tires so that the defect or noncompliance is removed; or (2) replace the tire with an identical or reasonably equivalent tire that does not have the defect or noncompliance. Whichever of these options is chosen, the tire manufacturer must bear the expense and cannot charge the tire owner for the remedy. It is a simple matter to check the tires to see that the marking requirements of the respective standards are satisfied. With respect to the tire and rim matching information, this information, together with the loading schedules for the tire size (the loading schedules show the maximum load the tire can carry at designated inflation pressures) must either be set forth in a current standardization organization publication or be furnished by the manufacturer to each of its dealers and in duplicate to this agency. You may wish to obtain a copy of the most current publication by the American standardization organization to see if your company can use the loading schedules and tire and rim matching information published therein for the particular tire sizes you wish to sell in the United States. That publication may be ordered by sending $8.50 plus postage costs to: The Tire and Rim Association, 3200 West Market Street, Akron, Ohio 44313. If the tire sizes and corresponding rims listed in that publication for your tire sizes are satisfactory, you need take no further steps to comply with this requirement. However, if your sizes are not listed or your company believes different values should be assigned, you may consult the publications of other standardization organizations or may elect to furnish the appropriate information to this agency and to each of your dealers. I am enclosing a copy of another regulation that applies to the tires you seek to import, 49 CFR Part 574, Tire Identification and Recordkeeping. Section 574.7 of this regulation requires your company, as the brand name owner of new tires, to furnish an adequate supply of tire registration forms to dealers selling your tires. These forms are used to record the name and address of the first purchaser of each tire. The completed forms will be returned to you, or some party designated by your company. Your company is required to maintain the information on the tire registration forms for a period of not less than three years from the date on which you or some designee receive the information. Further, Part 574 requires every tire sold in this country to be labeled with certain information (see 574.5), including the identification mark assigned to the manufacturer. To get an identification mark, the actual manufacturer of the tires must provide the information specified in 574.6 of the regulation. A different identification mark will be assigned to each of the manufacturer's different plants. Please note that an identification mark will be assigned only to the actual manufacturer of the tires, and not to your company which only imports the tire. This is because S574.5 requires that this identification mark be molded into or onto all new tires. The only party that can mold the mark into or onto the tire is the actual manufacturer. An identification mark is normally assigned within two weeks after the receipt of such a request. However, the identification mark will not be assigned until this agency has received a valid designation of agent from the tire manufacturer, as required by 49 CFR Part 551 (copy enclosed). This regulation requires all manufacturers located outside of the United States to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. Part 551 requires that the designation of agent contain the following six items of information: 1. A certification that the designation 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 foreign tire manufacturer; 3. Marks, trade names, or other designations of origin of any of that manufacturer's tires that do not bear the name of the company; 4. A statement that the designation shall remain in effect until withdrawn or replaced by the foreign tire manufacturer; 5. A declaration of acceptance duly signed by the agent appointed by the foreign tire manufacturer, and the agent may be an individual or a U.S. firm or corporation; and 6. The full legal name and address of the designated agent. If you need any further information or a clarification of any of the information set forth in this letter, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992. Sincerely, Original Signed By Erika Z. Jones Chief Counsel Enclosures

ID: 18780.ztv

Mr. Henry S. Winokur
6613 Elgin Lane
Bethesda, MD 20817-5443

Dear Mr. Winokur:

This is in reply to your e-mail of September 22, 1998, to Rich Van Iderstine of this agency. You report having sent two prior e-mails to this Office with no response. I am not sure to whom they were addressed, but Taylor Vinson, the attorney who handles lighting matters, did not receive them. I am sorry that we have not been able to respond until now, but questions of Federal preemption are complicated and not easily resolved. Further, all opinions from this Office are coordinated with other Offices of the agency to ensure accuracy and consistency, and this process necessarily takes a little time.

You report that the State of Maryland regards modulating motorcycle headlamps as lights that flash, thereby violating state laws reserving use of flashing lights for emergency vehicles. You wish to see this situation corrected by the agency's application of the Federal preemption provision. Mr. Van Iderstine has provided you with copies of two interpretations which he believed indicate that Maryland's law is not valid. These letters are those of February 1, 1990, to Tracey Powell of the American Motorcyclist Association (AMA), and the letter of September 11, 1997, to Walter Jakobowski of Signal Dynamics Corporation.

We have reviewed the Maryland Vehicle Law. Section 22-218 Audible and visual signals on vehicles, states in pertinent part:

(c) oscillating, blinking, etc. lights on certain vehicles. A person may not drive . . . on any highway . . . any vehicle. . . that is equipped with or displays any light . . . designed to emit an oscillating, rotating, blinking, or other type of emission of light, unless designated and authorized by the [Maryland Motor Vehicle] Administrator as indicated in paragraphs (1) through (9) of this subsection.

Our review shows that the exceptions of paragraphs (1) through (9) deal with fire, police, ambulance, state, and service vehicles, and not with motorcycles driven by ordinary citizens.

On the other hand, S7.9.4 Motorcycle headlamp modulation, of Federal Motor Vehicle Safety Standard No. 108, 49 CFR 571.108 Lamps, Reflective Devices and Associated Equipment, specifies that a headlamp on a motorcycle may be wired to modulate, provided that it does so in accordance with the requirements prescribed in S7.9.4. I am enclosing a copy of S7.9.4 per your request to Mr. Vinson. We understand that a modulating headlamp is activated automatically when the ignition switch is turned on, and that a motorcycle operator cannot deactivate the modulation feature except by turning off the engine.

With respect to Federal preemption of state laws, 49 U.S.C. 30103(b)provides in pertinent part that:

b) PREEMPTION - (1) 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.

This means that, under 49 U.S.C. 30103(b)(1), a State may have its own standard which allows a motorcycle headlamp to be wired to modulate in the same manner as prescribed under S7.9.4. However, since the Federal standard specifically allows a modulation of motorcycle headlamps, a State may not establish or continue in effect a standard prohibiting a headlamp that modulates in accordance with S7.9.4 of Federal Motor Vehicle Safety Standard No. 108. As our letter to AMA notes, we distinguish between a flashing lamp (one that goes from either the upper or lower beam to off) and a modulating lamp (one that goes from a higher to a lower intensity within either the upper or lower beam). However, the Maryland prohibition against lamps that oscillate or feature any "other type of emission of light" could be interpreted to include any lamp whose light is not steady-burning when the lamp is activated, whether or not it is intended to apply to a motorcycle's modulating headlamp.

Mr. Vinson has discussed the motorcycle headlamp modulation provisions of Standard No. 108 with Jon Acton of the Office of the Attorney General, Maryland, as well as your unsuccessful attempt to contact the Motor Vehicle Administrator. Mr. Acton seems willing to accommodate your request for a favorable interpretation of Maryland law, to indicate that it was not intended to prohibit a modulating headlamp on motorcycles. He surmises that you tried to communicate by e-mail, and remarked that such a message would be forwarded to him for reply, but that he had not received it. He invites you to communicate with him, either by letter (Office of Attorney General, Room 200, Motor Vehicle Administration, 6601 Ritchie Highway, N.E., Glen Burnie, MD 21062) or by e-mail:

(vaja2@mdot.state.md.us).

If you have further questions, you may refer them to Mr. Vinson (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
cc: Jon Acton

ID: 8034

Mr. Daniel Cassese
28 Elva Road
N. Weymouth, MA 01291

Dear Mr. Cassese:

This responds to your letter of November 19, 1992. Your letter describes your invention called a "Head Rest Extension." You asked if this invention would comply with Federal Motor Vehicle Safety Standards Nos. 201, 202, and 208.

By way of background information, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish four safety standards which could be relevant to a head rest extension: Standard No. 201, Occupant Protection in Interior Impact, Standard No. 202, Head Restraints, Standard No. 208, Occupant Crash Protection, and Standard No. 302, Flammability of Interior Materials.

These four standards apply only to new vehicles, not to items of individual equipment. If the head rest extension were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including these four, with the head rest extension installed. However, as you have explained in a phone conversation with Mary Versailles of my staff, your product is intended to be an item of after-market equipment.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation. Please note that the "render inoperative" prohibition does not require manufacturers, distributors, dealers, and repair businesses to certify that vehicles continue to comply with the safety standards after any aftermarket modifications are made. Instead, "render inoperative" prohibits those entities from performing aftermarket modifications that they know or should know will result in the vehicle no longer complying with the safety standards.

Please note also that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your head rest extension in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

You should also note that a head rest extension would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if it contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, you would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge.

I have enclosed an information sheet for new manufacturers of motor vehicle equipment that briefly explains the responsibilities imposed on manufacturers, and tells how to get copies of the relevant laws and regulations.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

ref:VSA#201#202#208#302 d.1/5/93

ID: nht93-1.4

DATE: January 5, 1993

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA; Signed by John Womack

TO: Daniel Cassese

TITLE: None

ATTACHMT: Attached to letter dated 11/19/92 from Daniel Cassese to Paul J. Rice (OCC 8034)

TEXT:

This responds to your letter of November 19, 1992. Your letter describes your invention called a "Head Rest Extension." You asked if this invention would comply with Federal Motor Vehicle Safety Standards Nos. 201, 202, and 208.

By way of background information, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 ET SEQ.) authorizes this agency to issue Federal motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self- certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish four safety standards which could be relevant to a head rest extension: Standard No. 201, OCCUPANT PROTECTION IN INTERIOR IMPACT, Standard No. 202, HEAD RESTRAINTS, Standard No. 208, OCCUPANT CRASH PROTECTION, and Standard No. 302, FLAMMABILITY OF INTERIOR MATERIALS.

These four standards apply only to new vehicles, not to items of individual equipment. If the head rest extension were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including these four, with the head rest extension installed. However, as you have explained in a phone conversation with Mary Versailles of my staff, your product is intended to be an item of after-market equipment.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any devise or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

Any violation of this "render inoperative" prohibition would subject the

violator to a potential civil penalty of up to $1,000 for each violation. Please not that the "render inoperative" prohibition does not require manufacturers, distributors, dealers, and repair businesses to certify that vehicles continue to comply with safety standards after any aftermarket modifications are made. Instead, "render inoperative" prohibits those entities from performing aftermarket modifications that they know or should know will result in the vehicle no longer complying with the safety standards.

Please note also that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your head rest extension in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

You should also note that a head rest extension would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if it contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, you would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge.

I have enclosed an information sheet for new manufacturers of motor vehicle equipment that briefly explains the responsibilities imposed on manufacturers, and tells how to get copies of the relevant laws and regulations. I hope you find this information helpful.

If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: 2628y

Donald C. J. Gray, Commissioner
Federal Supply Service
General Services Administration
Washington, DC 20406

Dear Mr. Gray:

This responds to your letter to Mr. Barry Felrice, our Associate Administrator for Rulemaking. Your letter noted that 49 CFR 571.7(c) provides that Federal motor vehicle safety standards promulgated by the National Highway Traffic Safety Administration do not apply to vehicles that are "manufactured for, and sold directly to, the Armed Forces of the United States, in conformity with contractual specifications." You asked if this exception could be interpreted as applying to school buses purchased by the General Services Administration for the sole use of the Army. The answer to your specific question is "yes." Those buses would be regarded as having been sold directly to the Armed Forces.

The exception in 49 CFR 571.7(c) reflects a balancing of competing interests. On the one hand, Congress specified in the National Traffic and Motor Vehicle Safety Act that all new motor vehicles sold in the United States must be certified as conforming with all applicable safety standards. On the other hand, NHTSA recognizes the unique transportation needs of the Armed Forces and the specialized functions of many military vehicles. When the Armed Forces include specifications in a contract stating how the vehicles shall be produced and as a result the vehicles do not conform with some safety standards, this presumably reflects a judgment by the Armed Forces that the specialized capabilities needed in the vehicle are sufficiently compelling to outweigh the general interest in ensuring that Armed Forces' vehicles comply with the applicable safety standards.

To reflect both of these competing interests, NHTSA tailored a narrow exception to the broad requirement that all motor vehicles sold in the United States be certified as complying with the safety standards. This exception, reflected in the language of 49 CFR 571.7(c), provides that the safety standards do not apply to vehicles or items of motor vehicle equipment that are:

manufactured for, and sold directly to, the Armed Forces of the United States, in conformity with contractual specifications.

We would regard the buses as having been sold directly to the Armed Forces despite the fact that the purchasing was performed by the GSA instead of some element of the Armed Forces. The essential element of this criterion is that the Armed Forces be the principal. In this case, the Armed Forces would be the principal, and the GSA would simply be acting as its agent. We see no meaningful difference between a sale to an element of the Armed Forces and one to the GSA acting as agent for the Armed Forces, as long as the vehicles are for the sole use of the military. Our conclusions in this regard are consistent with several 1975 agency interpretations informing brake hose manufacturers that brake hoses manufactured according to military specifications and sold to military contractors for incorporation in vehicles to be sold to the military could be regarded as equipment sold directly to the Armed Forces.

Please note that to qualify for this exemption, the buses must be manufactured for the Armed Forces "in conformity with contractual specifications." In the interest of safety, we strongly recommend that the GSA or the Army, as appropriate, include the substantive provisions of the Federal motor vehicle safety standards relating to school buses in those specifications, except insofar as they are actually inconsistent with the intended usage of the buses.

I hope this response is useful. If you can provide me with further information, I would be happy to provide further guidance.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref: 571 d:8/23/90

ID: nht78-2.6

DATE: 08/23/78

FROM: AUTHOR UNAVAILABLE; F. Berndt for J. J. Levin, Jr.; NHTSA

TO: U. S. Suzuki Motor Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of August 10, 1978, asking for an interpretation of Motor Vehicle Safety Standard No. 108. You have asked "whether an aftermarket Class A reflex reflector can be installed in addition to the original Equipment Class A reflex reflector, that is, an existing part of the motorcycle's rear combination lamp assembly." You have stated that "both reflectors would be installed vertically on the motorcycles vertical centerline," and have commented that you understand "that two reflectors may be installed horizontally about the vertical centerline, but it is unclear to us whether they may both be installed one on top of the other, vertically, as this is not addressed in FMVSS #108."

You have misunderstood Standard No. 108. Table IV clearly states with respect to location of rear reflex reflectors on motorcycles that "if two are used on the rear, they shall be symmetrically disposed about the vertical centerline." This requirement precludes the use of two rear reflectors mounted above each other vertically on the vehicle's centerline if your fender extension is sold as an accessory on a motorcycle at the time of its first purchase for purposes other than resale.

Generally, however, Federal standards do not cover vehicles after their first purchase and an owner may modify his vehicle in any manner he chooses consistent with local law. Modification by dealers, distributors, and repair businesses are prohibited only if they "render inoperative" any device or element of design installed on a motor vehicle in accordance with a Federal safety standard. Although aftermarket installation of the fender with reflector by a dealer after a vehicle's sale would not be consistent with the reflector location requirements of Standard No. 108, we cannot say that it would "render inoperative" the reflector installed as original equipment. We therefore have no objection to you offering this component as an aftermarket accessory to be added after a vehicle's initial sale.

SINCERELY,

U.S. SUZUKI Motor Corporation

August 10, 1978

Joseph J. Levin, Esquire Chief Counsel National Highway Traffic Safety Administration

Re: Request for interpretation

Dear Mr. Levin,

The U.S. Suzuki Motor Corporation is considering the addition of a rear fender extension to its Suzuki aftermarket accessory line for one of its large motorcycles. The accessory fender extension in question has as a component a Class A reflex reflector. The motorcycle's existing Class A reflex reflector is part of the rear combination lamp assembly.

The problem we are encountering is with interpreting FMVSS #108, Table IV, Location of Required Equipment, as to whether an aftermarket Class A reflex reflector can be installed in addition to the original Equipment Class A reflex reflector, that is, an existing part of the motorcycles' rear combination lamp assembly.

Both reflectors would be installed vertically on the motorcycles vertical centerline. We understand that two reflectors may be installed horizontally about the vertical centerline, but it is unclear to us whether they may both be installed one on top of the other, vertically, as this is not addressed in FMVSS #108.

For demonstration purposes we are enclosing photographs that show one of our current motorcycles in its original state (#1) and two that show the aftermarket fender extension mounted on the motorcycle (#2, #3). We would appreciate your reply as to whether or not Suzuki can offer this fender extension with reflex reflector as an aftermarket accessory, and that if aftermarket installation of it would be permitted.

Thank you for your assistance in this matter.

F. Michael Petler Assistant Manager Safety & Legislation Dept.

ENCLS.

CURRENT MODEL MOTORCYCLE WITHOUT AND WITH ACCESSORY FENDER EXTENSION

Photograph #1 Motorcycle rear fender in original state "OEM"

Photograph #2 Motorcycle rear fender with accessory fender extension installed

Photograph #3 Motorcycle rear fender with accessory fender extension installed.

(Graphics omitted)

ID: nht76-1.38

DATE: 12/23/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Carlisle Tire & Rubber Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Carlisle Tire and Rubber Company's May 7, 1976, request for assurance that certain of its tires are in Compliance with Standard No. 119, New Pneumatic Tires for Vehicles Other Than Passenger Cars, and your request for a meeting on the issue of reduced performance requirements for tires used on motor-driven cycles with a maximum speed capability of 30 mph or less. I regret that we have not responded sooner.

The National Traffic and Motor Vehicle Safety Act (the Act) (15 U.S.C. @ 1391, et seq.) does not permit the assurance of compliance with Standard No. 119 that you request. The Act requires "self-certification" by the manufacturer that each of its products actually complies with all applicable standards (15 U.S.C. @@ 1397(a)(1)(A), 1403). The NHTSA does not issue "approvals" for this reason.

With regard to your request for a meeting on the subject of performance standards for tires used on low-speed motor-driven cycles, I would like to advise you that the NHTSA has decided to reduce some of the performance requirements for these tires. If you believe that a meeting would be desirable before we have issued a specific proposal, please contact Mr. Elwood Driver at the above address (tel. (202) 426-1740) to meet on the technical aspects of this issue.

SINCERELY,

Carlisle Tire & Rubber

May 7, 1976

National Highway Safety Administration Frank Berndt Acting Chief Council, Legal Section

The Carlisle Tire & Rubber Company located in Carlisle, Pennsylvania is a manufacturer of bicycle and motorcycle type tires. Because of the recent interest in moped vehicles in the United States we have decided to add this type of tire to our line of products. Since this is a highway type tire we are attempting to comply with the requirements of the Department of Transportation. It has been indicated to us by various representatives of the Department of Transportation that this tire must be treated as a motorcycle tire even though the size of the motor of this vehicle would prevent these tires from ever exceeding a speed of 30 to 35 miles per hour. In attempting to comply with your current requirements we have subjected our tests to the following conditions.

1. The tire marking is in accordance with Motor Vehicle Safety Standard 119 and particularly Part 574. The DOT symbol is shown on the tire as well as our manufacturing code, tire size identification, and the date of manufacture. The tire size designation is shown. The maximum load rating and corresponding inflation pressure is also indicated on the tire. We identify our tire as a moped tire by printing the word "moped" on the sidewall of the tire. We have speed restricted tires by the words cured in the sidewall "Not to exceed 35 mph." We indicate the actual number of plies and the composition of the ply cord material. We also identify the tire as a tube type tire. The tire load is identified as "Load Range A."

2. We have three tread wear indicators that will provide visual determination that the tread has worn to a depth of 1/32nds of an inch.

3. The carcass strength has been tested to make sure that we are in accordance with Table 2 of the FMVSS-119 standard.

4. The tires have successfully passed the high speed performance test as listed in FMVSS-119. This, of course, requires testing the tire at 75, 80, and 85 miles per hour. Naturally we feel that these speeds are excessive for this limited horsepower vehicle.

5. The tire has been subjected to the endurance test as prescribed in FMVSS-119. Once again, we feel that these conditions are excessive since the vehicle is not capable of speeds of 50 mph.

We are maintaining a file of our tests performed on this tire. Although we are currently passing all of the motorcycle tests required by FMVSS-119 we feel that those requirements are excessive for this type of vehicle. We are capable of meeting those requirements by the use of more expensive materials and compounds than that required for this type of lightweight duty tire.

There are two purposes for writing this memorandum to your department.

1. We would like to have assurance from you that the tires that we are marketing are in compliance with the requirements of the Department of Transportation.

2. We are requesting a meeting with your department so that we may present proposed amendments to this safety standard that we feel would be more realistic for this type of tire.

We respectfully await your response to this subject.

J. L. Hollis Vice President/Engineering