Interpretation ID: oxbody.ztv
Weiner, Brodsky, Sidman & Kider, P.C.
1350 New York Avenue, Suite 800
Washington, D.C. 20005-4797
FAX 202-628-2011
Re: Ox Bodies, Inc.
Dear Mr. Sidman:
This is in reply to your letter of June 3, 1997, to James Gilkey, Office of Vehicle Safety Compliance, in connection with the agency's investigation of whether Ox Bodies, Inc., has located rear clearance lamps in compliance with Federal requirements.
In your letter of June 3, you have offered your interpretation of paragraph S5.3.1.1. and paragraph S5.3.1.1.1 of 49 CFR 571.108 Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. You believe that Standard No. 108's paragraphs relating to clearance lamp location fails the test of practicability "because it is impossible for regulated parties to demonstrate compliance".
Table II of Standard No. 108 requires that clearance lamps be located on the front and rear, to indicate the overall width of the vehicle. However, they may be located "other than on the. . . rear if necessary to indicate overall width or to protect them from damage during normal operation (S5.3.1.1.1). To prevent damage, Ox Bodies has located its rear clearance lamps "on the side."
In pertinent part, the first sentence of paragraph S5.3.1.1 of Standard No. 108 provides that "[e]xcept as provided in S5.3.1.1.1, each lamp and reflective device shall be located so that it meets the visibility requirements specified in any applicable SAE Standard or Recommended Practice." The applicable SAE standard for clearance lamps, incorporated by reference in Standard No. 108, is J592e "Clearance, Side Marker, and Identification Lamps", July 1972, which specifies nine photometry test points for clearance lamps at 45 degrees left, center, and 45 degrees right. The exception provided by Paragraph S5.3.1.1.1 is for clearance lamps mounted other than on the front and rear of the vehicle, which "need not be visible at 45 degrees inboard."
You also point out that the applicable portion of the second sentence of paragraph S5.3.1.1 prohibits any part of a vehicle from preventing "any other lamp [including clearance lamps] from meeting the photometric output at any test point specified in any applicable SAE Standard or Recommended Practice."
You comment that S5.3.1.1.1 does not say that alternatively located clearance lamps "need not be visible nor meet applicable photometric output requirements at 45 degrees inboard" and that this leads to an "irreconcilable internal inconsistency" in Standard No. 108. On the one hand clearance lamps may be mounted at alternative locations and need not be visible at 45 degrees inboard, but on the other hand, they are not exempted from meeting all photometric requirements, including those at 45 degrees inboard. You believe that these allegedly "contradictory" provisions make it impossible to comply with Standard No. 108.
At the recent meeting with Mr. Gilkey and others from this agency, the agency explained that it does not interpret Standard No. 108 as requiring photometric compliance where visibility compliance is not required. Nor have we ever suggested that the failure of side-mounted clearance lamps to meet SAE photometric requirements from 45 degrees inboard constitutes a noncompliance. You argue that this "mirror" interpretation creates a dead end because there are no SAE affirmative visibility requirements for clearance lamps in the first place, and that this internal inconsistency renders compliance impracticable.
You are correct that the SAE Standard J592e contains no visibility requirements, in spite of the contrary impression conveyed by the reference to visibility in the first sentence of S5.3.1.1 and in S5.3.1.1.1. But this erroneous reference to "visibility" has absolutely no effect upon S5.3.1.1's requirement (in its second sentence) that clearance lamps must be located to meet all applicable photometric requirements (including 45 degrees inboard). This, without more, is the operative requirement for clearance lamps no matter where located. Further, this has been the agency's position for over 20 years. See our letters of May 5, 1977 and July 29, 1996 to Dennis G. Moore, and of November 18, 1996, to Larry Keith Evans, Esq., copies enclosed.
However, since it is clearly impossible for a lamp that is not visible from a particular point to meet photometric output requirements from that point, by specifying that alternatively located clearance lamps need not meet visibility requirements at 45 degrees inboard, S5.3.1.1.1 must be viewed as relieving a manufacturer from meeting photometric requirements at the 45 degree inboard test points. At the recent meeting you attended representing Ox Bodies, the NHTSA participants indicated that the agency has interpreted paragraphs S5.3.1.1 and S5.3.1.1.1, not withstanding the reference to "visibility," as reading in pari passu to relieve a manufacturer of clearance lamp photometric compliance at the 45-degree inboard test points, and to require photometric compliance at all other test points.
Thus, while we agree that it is not "practicable" for truck manufacturers that utilize side-mounted clearance lamps to certify compliance with the photometric requirements for 45 degrees inboard required of rear-mounted clearance lamps, this has no bearing on the duty to assure (and certify) compliance at all other photometric test points, as required by the second sentence of S5.3.1.1. That requirement is clear and independent of any reference to "visibility." Indeed, you imply that the exception in S5.3.1.1.1 that applies only to the inboard test position somehow excuses a truck manufacturer from installing clearance lamps.
That implication defies common sense. The purpose of clearance lamps is to indicate the overall width of the vehicle. Thus, they must be located where a following driver could see them, or else they would be functionally useless. The rulemaking history of S5.3.1.1.1 indicates that the exception was adopted to facilitate use of clearance lamps on truck and trailer fenders, the widest point of the vehicle, located forward of the rear where inward visibility would be restricted because of the presence of cargo beds and the like (See 40 FR 24204 and 54427, copies enclosed). Further, the agency expects any manufacturer, faced with portions of a standard that appear to be contradictory, to exercise reasonable care by asking for an interpretation to resolve the inconsistencies. We have never received an inquiry from Ox Bodies indicating any difficulty in understanding its obligations under Standard No. 108.
Representatives of the Office of Safety Assurance are reviewing your letter of June 19, 1997, in which you suggest a disposition of this matter, and will telephone you shortly after your return.
Sincerely,
John Womack
Acting Chief Counsel
Enclosures
ref:108
d.7/5/97