ID: 2800o

AIR MAIL

Mr. M. Arisaka Manager, Automotive Lighting Homologation Sect. Stanley Electric Co., Ltd. 2-9-13, Nakameguro, Meguro-ku Tokyo 153 JAPAN

Dear Mr. Arisaka:

This is in reply to your letter of May 31, 1988, asking about the acceptability of installing an additional red reflex reflector on the rear of a passenger car. The reflector would be centered between the two red reflex reflectors required by the standard. In your opinion, the additional reflector will not impair the effectiveness of other lighting equipment required by Standard No. l08.

As you have properly noted, supplementary motor vehicle equipment including reflectors is permissible under paragraph S4.1.3 of Standard No. l08 as long as it does not impair the effectiveness of equipment that the standard requires. The determination of whether supplementary equipment, in fact, impairs the effectiveness of the required equipment is initially that of the manufacturer of the vehicle upon which the supplementary equipment is to be installed, and who certifies compliance with all applicable Federal motor vehicle safety standards including paragraph S4.l.3 of Standard No. l08. The National Highway Traffic Safety Administration neither approves nor disapproves of specific vehicle designs, and unless there are reasons to believe that the supplementary equipment will, in fact, impair the effectiveness of the required lighting equipment this agency accepts the manufacturer's determination.

The drawing you attached shows the location of the two required rear reflex reflectors, and the supplementary one, but does not depict the location or types of other required rear lighting equipment, i.e. stop lamps, center highmounted stop lamp, taillamps, turn signal lamps, license plate lamp, and backup lamps. However, in your opinion the reflector will not impair the effectiveness of these lamps and the required reflectors, and the agency has no reason to believe that the third reflector will, in fact, impair the effectiveness of them.

I hope this answers your question, and that the guidelines given in this letter will encourage you to reach satisfactory determinations without the necessity of submitting them to this agency for comment. We appreciate your continuing interest in motor vehicle safety.

Sincerely,

Erika Z. Jones Chief Counsel

rev:l08 d:8/l0/88

ID: 2805yy

Ms. Carol Zeitlow
Manager, Engineering Services
Oshkosh Truck Corp.
P.O. Box 2566
Oshkosh, WI 54903-2566

Dear Ms. Zeitlow:

This is in response to your letter of December 21, l990, to Taylor Vinson of this Office, in which you ask a question about Federal Motor Vehicle Safety Standard No. l08. You have also asked for confirmation of your understanding with Mr. Vinson with respect to three other aspects of motor vehicle safety regulations of the National Highway Traffic Safety Administration.

With respect to Standard No. l08, you believe that our letter to you of August 27, l990, stated that "the hazard warning signal should always override the stop lamp signal when both are red in color." Mr. Vinson, by telephone on October 9, said that he believed that at some time previous the override feature had been at the option of the vehicle manufacturer. You have asked the date that Standard No. l08 changed, and "in which section of the regulations can I find the ruling."

Actually, our letter of August 27, l990, did not state that the hazard warning signal should override the stop lamp signal. We explained that Standard No. l08 requires a turn signal lamp to override the stop lamps if the lamp optically combines stop and turn signals, and that because the hazard system operates through the turn signal lamps, the stop signal cannot be turned on in an optically combined lamp if the hazard system is in use. The specific wording of the regulatory requirement is "When a stop signal is optically combined with a turn signal, the circuit shall be such that the stop signal cannot be turned on in the turn signal which is flashing." You will find this in paragraph 4.2 of SAE Standard J586c Stop Lamps August l970, and in paragraph 4.4 of SAE Standard J588e Turn Signal Lamps September l970, both of which are incorporated by reference in Table I and Table III of Standard No. l08. And a vehicular hazard warning flasher is a device which causes all the required turn signal lamps to flash; see Definition in SAE Recommended Practice J945 Vehicular Hazard Warning Signal Flasher February l966, also incorporated by reference.

We note that this regulatory requirement was not originally contained in Standard No. l08. The predecessor SAE Standards J586b June l966 and SAE J588d June l966 originally incorporated in Standard No. l08 did not include override language. Standard No. l08 was amended on January 5, l976, to incorporate SAE J586c and SAE J588e, with an immediate effective date, but allowed compliance with the older standards until September 1, l978 (41 FR 765). Thus, during the period January 5, l976, to September 1, l978, a manufacturer had the option of providing the override feature in a combination lamp in which the hazard and turn signal functions used the same circuit.

You have also asked whether a sun visor is required by the Federal motor vehicle safety standards. The answer is no, if the vehicle is a truck, bus, or multipurpose passenger vehicle with a GVWR that exceeds 10,000 pounds. However, if the GVWR of those vehicles is l0,000 pounds or less, or if the vehicle is a passenger car, paragraph S3.4 of Standard No. 201 Occupant Protection in Interior Impact requires that a sun visor be provided for each front outboard designated seating position.

In addition, you asked whether any regulation specified the type or quantity of horns required on a motor vehicle. The answer is no. Standard No. 101 Controls and Displays does not require that any motor vehicle be equipped with a horn. However, if a horn is provided, it is subject to the requirements of the standard for horn control location, identification, and illumination.

Finally, you asked whether Standard No. l04 Windshield Wiping and Washing Systems contains "the percentage of area of the windshield that the windshield wiper must wipe", or specifies only the frequency of the wipers. Standard No. l04 does not specify wiped area percentages for windshield wiping systems on multipurpose passenger vehicles, trucks, or buses. However, it does specify percentages for passenger car systems, and it specifies the frequency for all motor vehicle windshield wiping systems.

I hope that this answers your questions.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l0l#l04#l08#20l d:l/l6/9l

ID: 2806yy

Ms. Rebecca Flint
Polymeric Systems, Inc.
Wheatland and Mason Streets
Phoenixville, PA 19460

Dear Ms. Flint:

This responds to your letter asking whether this agency must approve your product, an epoxy putty that could be used to repair leaking gas tanks. You said a customer would like to market your product "for fleet (buses and truck) maintenance." The answer is no, the National Highway Traffic Safety Administration (NHTSA) does not approve or certify products.

By way of background, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards (FMVSS's) applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all of our applicable safety standards. This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. NHTSA regularly tests vehicles and equipment for compliance with the FMVSS's as part of its enforcement program. In addition, the agency also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

There isn't any FMVSS that directly applies to repair putty for fuel tanks. Federal Motor Vehicle Safety Standard 301, Fuel System Integrity, sets performance requirements for new vehicles with a gross vehicle weight rating of 10,000 pounds or less and school buses. The standard does not apply to products sold to repair fuel tanks on vehicles already in use.

Repair of a damaged fuel tank in a new vehicle would be affected by the statutory requirement that the vehicle, when first sold to a consumer, must comply with FMVSS 301. If a new vehicle's fuel tank is repaired prior to such sale, the person making the repairs would be considered a vehicle alterer under our regulation on certification (Part 567, copy enclosed). As an alterer, the person must certify that the fuel system, as altered, continues to comply with all of the applicable requirements of Standard 301.

After a vehicle is first sold to a consumer, repairs to a vehicle are potentially affected by section 108(a)(2)(A) of the Vehicle Safety Act. That section prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly rendering inoperative any device or element of design installed in compliance with a FMVSS. However, the agency does not view that prohibition as applying to the repair of a fuel tank which has been previously installed in a vehicle and damaged in use. The agency considers the event that damaged the fuel tank and not any subsequent action by a person repairing the damaged tank in a used vehicle as the event that "rendered inoperative" the compliance of the fuel tank with the standard. Thus, a person in one of the aforementioned categories may use the putty to repair a damaged fuel tank on a used vehicle without regard to the render inoperative prohibition. Of course, however, NHTSA urges all persons repairing motor vehicles to ensure that the repair is done safely.

The prohibition of section 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may use the repair putty regardless of its effect on the performance of fuel tanks. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

An issue raised by your inquiry is whether the putty is "motor vehicle equipment" under the Vehicle Safety Act. Manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. As discussed below, we believe the putty is not motor vehicle equipment.

Section 103(4) of the Act defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . . (emphasis added).

In determining whether an item of equipment is considered an "accessory . . . to the motor vehicle," NHTSA applies not only the relevant statutory language, but also two criteria. The first criterion is whether a substantial portion of the expected uses of the item are related to the operation or maintenance of motor vehicles. We determine the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify). If the product satifies both criteria, the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to your inquiry, the first criterion appears to be satisfied because a substantial portion of the expected uses of the putty is related to the operation or maintenance of motor vehicles. The second criterion, however, does not appear to be satisfied. In a December 21, 1990 telephone conversation with Ms. Fujita of my staff, you stated that the putty would be sold to professional mechanics only. Since your product is not intended for use by ordinary vehicle users, the putty is not considered to be motor vehicle equipment.

Our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for commercial vehicles used in interstate commerce. We will forward a copy of your letter to the FHWA for information about those requirements.

I hope this information is helpful.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosures ref:301, VSA#108 d:l/l4/9l

ID: 2807yy

Mr. Paul A. Shaw
Superintendent
Florence County School District Five
Marion Street
P.O. Drawer 98
Johnsonville, South Carolina 29555

Dear Mr. Shaw:

This responds to your letter of October 15, 1990. In your letter you correctly state that a van designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events is considered a school bus under federal law. You then asked, "(d)oes federal law prohibit a school district from using a fifteen-passenger van that does not meet federal safety standards for school buses to transport students to athletic events, extra-curricular activities, and field trips?"

The answer to your question is no. The National Highway Traffic Safety Administration (NHTSA) has issued Federal motor vehicle safety standards applicable to all new school buses. These standards impose obligations on the manufacturers and sellers of new motor vehicles, not upon the subsequent users of these vehicles. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. On the other hand, without violating any provision of Federal law, a school district may use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the activities of a user of a school bus. Therefore, to determine whether your school district may use noncomplying vans, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students. I encourage your school district to give your most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

Your letter also indicates that your school district purchased a "standard, fifteen-passenger 1990 Dodge van to transport students to various school-related events." I assume that by the term standard you are indicating that the van has not been certified as complying with all regulations applicable to school buses. If this van was purchased new, and if the dealer knew of your intended use, the dealer may have violated federal law. If you believe that you were sold a noncomplying vehicle, please contact NHTSA's Office of Vehicle Safety Compliance, at the address given above.

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref: 571.3 d:l/l4/9l

ID: 2808yy

Mr. Chino O'Hara
Minority Co-ordinator
Del Mar Manufacturing Company
2713-B North Towne Avenue
Pomona, California 91767

Dear Mr. O'Hara:

This responds to your letter of December 11, 1990 in which you ask whether your product "Husky Brake Anti-Squeek" needs approval of the Department of Transportation (DOT). An enclosure to your letter indicates that the product is intended for application on the pad surface of motor vehicle disc brakes to "stop brake squeeking" and to "produce a surface that gives better braking" by acting as a "lubricant to the friction material." I am pleased to have this opportunity to explain our law and regulations for you.

The National Highway Traffic Safety Administration (NHTSA) (part of DOT) does not certify or approve motor vehicles or motor vehicle equipment for compliance with the Federal Motor Vehicle Safety Standards. Instead, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) establishes a "self-certification" process under which each manufacturer is responsible for certifying that every one of its products complies with all applicable safety standards. This agency periodically tests vehicles and items of motor vehicle equipment for compliance with the safety standards and also investigates other alleged defects related to motor vehicle safety.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. However, there are other requirements that may affect this product. First, manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety.

Section 102(4) of the Safety Act (15 U.S.C. 1391(4) defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . .

If the "Husky Brake Anti-Squeek" is manufactured and sold for the improvement of motor vehicle brake systems, it would be considered "motor vehicle equipment" within the meaning of the Safety Act. If either the equipment manufacturer or this agency were to determine that your product contained such a defect, the manufacturer would have to notify purchasers of the defect and remedy the problem free of charge to the purchasers.

Second, use of this product could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits manufacturers, distributors, dealers, or repair shops from knowingly "rendering inoperative" devices or elements of design that were installed in a motor vehicle to comply with the Federal Motor Vehicle Safety Standards. To avoid a "rendering inoperative" violation, the above-named parties should review the application instructions for your product and determine if installing the product following those instructions would result in the vehicle no longer complying with the requirements of the safety standards. The most relevant safety standard appears to be Standard No. 105, Hydraulic Brake Systems. That standard applies to new motor vehicles.

I hope that this information has been helpful. For your information, I am enclosing an information sheet for new manufacturers of motor vehicles and motor vehicle equipment and information on how to obtain copies of motor vehicle safety standards. Please feel free to contact us if you have any further questions.

Sincerely,

Paul Jackson Rice Chief Counsel Enclosure

ref:VSA#l05#l2l d:l/l4/9l

ID: 2809o

Mr. Paul Scully
Vice President
Peterson Manufacturing Co.
4200 East 135th St.
Grandview, MO 64030

Dear Mr. Scully:

This is in reply to your letter of April 22, l988, asking for a clarification of a letter that this Office sent Wesbar Corporation on March 16, 1988, with respect to the term "effective projected luminous area."

Wesbar had asked whether it could include the "illuminated (by the turn signal bulb) reflex reflector portion of the turn signal lens" (Wesbar's language) in its calculation of the l2 square inch minimum effective projected luminous area required by S4.1.1.7 of Safety Standard No. l08. We replied that it could, assuming that the light shines through the reflector. You have pointed out that although a small amount of light escapes through a reflex reflector, the reflector is designed to return light from an outside source, rather than to direct light from a source inside the lamp, and that heretofore agency interpretations (e.g. on October 28, 1970, and October 28, 1979) had expressly excluded reflex reflectors from areas included in the calculation of effective projected luminous area. Reflex reflectors are also excluded from the term by SAE J387 Terminology.

We appreciate your calling this matter to our attention. Previous interpretations by this Office clearly indicate that a "reflex reflector" is not to be included in the calculation of effective projected luminous area. We also note that the SAE definition (paragraph 2, SAE J594f, January l977) is incorporated by reference into Standard No. l08, stating that this item of equipment is one that provides an indication of vehicle presence by reflected light (rather than projected light). We are providing a copy of this letter to Wesbar so that it will be apprised of our reevaluation, and our conclusion that the reflex reflector portion of a lens cannot be included in the calculations of the projected luminous lens area.

I hope this clarifies the matter for you.

Sincerely,

Erika Z. Jones Chief Counsel ref:108 d:8/l9/88

ID: 2809yy

Mr. Thomas D. Turner
Manager, Engineering Services
Blue Bird Body Company
P.O. Box 937
Fort Valley, GA 31030

Dear Mr. Turner:

This responds to your inquiry concerning the applicability of Federal Motor Vehicle Safety Standard No. 221; School Bus Body Joint Strength, to specific joints attaching the floor and stepwell of a school bus. Your letter included a blueprint of the floor and stepwell structure of a large school bus, and asked whether the joints joining the stepwell to the Number 1 and 2 floor sections of the bus are required to comply with the joint strength requirement of Standard No. 221.

Based on the information provided in your letter, I conclude that the joints attaching the floor sections to the stepwell are required to comply with the joint strength requirement contained in S5 of Standard 221. I also conclude that the joints in the stepwell are subject to that requirement.

As you are aware, S4 of the Standard defines "body panel" as:

"...a body component used on the exterior or interior surface to enclose the bus' occupant space."

S4 also defines "body panel joint" as:

"...the area of contact or close proximity between the edges of a body panel and another body component, excluding spaces designed for ventilation or another functional purpose, and excluding doors, windows, and maintenance access panels."

S5 of the Standard requires that body panel joints must comply with the strength requirement. The floor panels and stepwells of a bus are body components which come within the definition of body panel, as they serve to enclose the occupant space of the bus. The joints attaching the floor panels to the stepwell are body panel joints, since they represent the area of contact between the edges of a body panel (either a floor panel or the stepwell) and another body component (either the stepwell or a floor panel), and do not represent a space designed for ventilation or another functional purpose, or a door, window, or maintenance access panel.

I note that the joints attaching the stepwell to the floor sections are identical to, and in the same horizontal plane as, the joints used elsewhere in the floor assembly. I also note that the stepwell assembly described in your letter is also subject to the joint strength requirement. The various portions of the stepwell serve to enclose the occupant space, and are therefore body components which come within the definition of body panel. Therefore, the joints attaching those portions of the stepwell which enclose the occupant space are body panel joints subject to the requirements of the Standard.

Your letter argues that the stepwell joints are exempted from the definition of "body panel joint" by virtue of their being designed for another functional purpose. You do not, however, state the purpose. I disagree with this assertion. As noted above, S4 of the Standard exempts spaces designed for ventilation or another functional purpose from the definition of body panel joint. The agency's longstanding criterion for determining the applicability of this exemption has been whether the body panel joint in question is considered to have a function in enclosing the occupant space. See, March 18, 1977 letter to W.G. Milby (copy attached).

In this case, the stepwell clearly has the function of enclosing occupant space. I note that, by enclosing occupant space at a location which provides access to the front door, the stepwell occupies a critical location in relation to an important exit. Because of its location, the integrity of the stepwell in a crash is as important as the integrity of any other component comprising the floor.

In addition, you argue that the joints between the floor sections and the stepwell need not comply with S5 because they are below the level of the floor. This argument is based on your interpretation of an April 26, 1976 letter from this office to W.G. Milby at Blue Bird which states that components located entirely below the floor level are not subject to the Standard.

That letter did not intend to exclude from the Standard all portions of a bus located below the plane formed by the primary floorline of the bus. The exclusion of those portions below the floor level was instead predicated on the assumption that there is a body panel (i.e., a floor panel) at floor level which encloses the occupant space, and which is located between the occupant space and that portion of the bus excluded from the standard. I note that the floor level of a bus is not a single continuous plane; it is determined at any particular point by the plane of the panel that comprises the floor at that point. Therefore, I do not agree that the stepwell-to-floor panel joints indicated in your letter are below the floor level or are excluded from the standard's joint strength requirements.

I hope you have found this information useful. Please do not hesitate to contact J. Edward Glancy of my staff at (202) 366-2992 if you have any further questions.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosures ref:22l d:l/l4/9l

ID: 2810o

#

Mr. William E. Lawler Specifications Manager Indiana Mills & Manufacturing, Inc. 18881 U.S. 31 North Westfield, IN 46074

Dear Mr. Lawler:

This responds to your request for an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Specifically, you noted that a July 5, 1988 final rule (53 FR 25337) requires that the safety belt systems on heavy trucks, multipurpose passenger vehicles and buses manufactured on or after September 1, 1990 must comply with S7.2 of Standard No. 208. S7.2(c) requires the latch mechanism on safety belts to "release at a single point by a pushbutton action."

Your company's comments on the proposal to adopt this requirement stated that you supported the proposal, but assumed that the requirement for a push button release would permit the continued use of slide button releases. In the preamble to the final rule, the agency responded to your comment as follows:

Some releases that comply with the requirements of S7.2(c) could be described as "slide-button releases." On the other hand, some designs that could be described as "slide-button releases' would not comply with S7.2(c), because they would not release by a "pushbutton action." If IMMI is uncertain whether the release machanism that it called a 'slide-button release" complies with the requirements of S7.2(c), it should request an interpretation of that section with respect to its release mechanism, and enclose pictures and diagrams of the release mechanism with the request for interpretation. 53 FR 25341.

In response to this invitation, you enclosed a photograph of several different safety belt buckles. You stated that the release button on these buckles moves parallel to the plane of the webbing and tongue, and that the buckle is mounted vertically and the button moves vertically when the occupant pushes it. Based on your description and the enclosed photograph, it appears that these buckle designs would comply with the requirement of S7.2(c) for release by a "pushbutton action."

Sincerely,

Erika Z. Jones Chief Counsel

ref:208

/NCC-20:SKratzke:mar:62992:8/25/88 OCC 2363, Wang # 2810o cc: NCC-01 Subj/Chron, NCC-20 SK, NRM-01, NEF-01 Interps: Std 208, Redbook (2)

ID: 2810yy

Mr. Jack Barben
President
Custom Form Mfg. Inc.
2100 Industrial Pkwy.
Elkhart, IN 46516

Dear Mr. Barben:

This replies to your letter of October 8, l990, with respect to a lighted side rail for pickup trucks that you wish to sell in the aftermarket. The rail would be offered in colors of amber, hot pink, and hot yellow. Your literature shows the rails as mounted immediately above the right and left longitudinal sides of the pickup bed. You would like to know our position on compliance of this product.

Aftermarket lighting equipment is permissible under the statutes and regulations of our agency as long as its installation by a manufacturer, distributor, dealer, or motor vehicle repair business does not render inoperative, in whole or in part, any element of design or device installed in accordance with a Federal motor vehicle safety standard. You have informed us that your literature warns against installation of the device in any manner that would orient it towards the front or rear of the vehicle, rather than along its sides. Also, you would provide instructions "for separate fusing of the electrical supply lines." Under these circumstances, we believe that there would not be any rendering inoperative of the lighting equipment required by Motor Vehicle Standard No. l08. Further, the lighted side rails would appear to enhance the conspicuity of the vehicle from the side, even though the colors you intend to offer are not the red of the vehicle's rear side marker lamp and reflector.

We are not in a position to advise whether the lighted side rails would comply with the laws of any State in which a vehicle so equipped is registered or operated. We recommend that you ask the opinion of the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203 on this issue.

You have commented that "This is a proprietary product and would appreciate your treatment as such." However, based upon a telephone conversation between you and Bill Fox of my staff, I understand that you do not expect confidential treatment of any of the information in your letter. Therefore, both your letter and our reply will be made available for inspection by the public in accordance with our policy on interpretations.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:l/25/9l

ID: 2811yy

Aggie Szilagyi, Esquire
Senior Counsel
New Jersey State Legislature
Office of Legislative Services
State House Annex
CN-068
Trenton, NJ 08625

Dear Ms. Szilagyi:

Thank you for your letter on behalf of Senator Ronald L. Rice requesting the views of the National Highway Traffic Safety Administration (NHTSA) on whether the Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act)(15 U.S.C. 2021 et seq.) would preempt provisions of New Jersey Senate Bill (SB) 3434. I apologize for the delay in this response. It is my understanding that SB 3434 has been reintroduced in this session of the legislature as SB 876. For the reasons described below, it is our opinion that the provisions in the bill for the mandatory antitheft devices on certain car lines would be preempted by the Theft Act.

We understand that SB 876 would prohibit the sale or lease of a passenger automobile that is at or over the "estimated median manufacturer's suggested retail price for all passenger automobiles" unless it is equipped with a "passive anti-theft device" that "automatically activates upon turning off the motor of a vehicle and causes an alarm or ignition cut-off to engage." Violation of this provision would be punishable by a fine.

Although the Theft Act contains an explicit preemption provision (15 U.S.C. 2031) for parts marking systems which would not be triggered by SB 876, the bill would nonetheless create an obstacle to the accomplishment and execution of the overall Congressional objectives embodied in the Theft Act and would therefore be preempted.

The objective of the Theft Act was to establish a least-cost antitheft system, with a parts-marking system being the system of choice. The Congress specified a $15-per-car limit for the cost of the system (15 U.S.C. 2024(a)), and made it clear that the alternative of installing antitheft devices was to be at the petition of the manufacturer, under procedures designed to ensure the effectiveness of such devices (15 U.S.C. 2025).

SB 876 would not only have the effect of requiring the installation of antitheft devices in vehicles that are marked under the Theft Act, thereby imposing a greater cost on the owners, but could require a vehicle with an antitheft device approved under the Theft Act to be equipped with a second antitheft device if the first device did not operate in the manner prescribed by SB 876. These effects would prevent the accomplishment of the Theft Act's objectives, and would thus satisfy the conditions for general preemption found by the Supreme Court in Hines v.Davidowitz, 312 U.S. 52 (1941) and followed in subsequent cases (Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Northwest Central Pipeline Corporation v. State Corporation Commission of Kansas, (109 S. Ct. 1262 (1989)).

I hope this information is helpful. If you have any further questions or need any additional information about this topic, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

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