ID: nht74-2.46

DATE: 12/04/74

FROM: AUTHOR UNAVAILABLE; Andrew G. Detrick; NHTSA

TO: Matlock Truck Body and Trailer Corporation

TITLE: FMVSR INTERPRETATION

TEXT: This is in reference to your defect notification campaign (NHTSA No. 74-0203) concerning trailers equipped with Standard Forge axles which may have defective brake shoes.

The letter which you have sent to the owners of the subject trailers does not completely meet the requirements of Part 577 (49 CFR), the Defect Notification regulation. Specifically, the second sentence of your letter describes the defect as existing in the brake shoes. Part 577.4(b), however, requires that in cases where a vehicle manufacturer is notifying owners of vehicles, the letter must state that a defect exists in the vehicle itself. The reference to motor vehicle equipment applies only to equipment campaigns where vehicles are not directly involved. Your letter also fails to adequately evaluate the risk to traffic safety as required by Part 577.4(d) since it does not state that the vehicle crash without warning may occur. Although the statement that reduced braking power or lockup may result may suggest the possibility of a crash to many owners, it is not entirely adequate.

Although mailing of a revised notification letter will not be required, it is expected that in the event that another defect notification campaign ever becomes necessary in the future, the notification letters conform completely with the regulations.

A copy of Part 577 is enclosed. If you desire further information, please contact Messrs. W. Reinhart or James Murray of this office at (202) 426-2840.

Sincerely,

Andrew G. Detrick -- Acting Director, Office of Defects Investigation Motor Vehicle Programs

Enclosure

ATTACH.

MATLOCK TRUCK BODY & TRAILER CORP.

February 11, 1975

Wolfgang Reinhart -- Office of Defects Investigation Motor Vehicle Programs, U.S. Department of Transportation, National Highway Traffic Safety Administration

RE: N41-62 re

Dear Mr. Reinhart: I received Mr. Andrew G. Detrick's letter of December the 4th, 1974 in regard to our defect notification campaign (#74-0203). He stated that my letter did not completely meet the requirements of Part 577 (49 CFR) in two specific items. I am returning a copy of his letter with the two points in question underlined in red and marked 1 and 2. Also, I am enclosing a copy of my letter of defect notification with the "answers" underlined in red and marked 1 and 2.

Please note that in the point marked 1 that my letter states that the defect exist in the brake shoes on Matlock MTE (electronic trailers).

In the second point, perhaps we were not specific enough about the possibility of a crash, but we were only quoting the statement in Standard Forge's letter to us.

We sent all the information to Standard Forge concerning the recall after receiving a letter from Mr. Detrick on January the 6th, 1975. In accordance with his letter, we will not submit the quarterly reports. A copy of the letter to Standard Forge is also enclosed.

Yours truly,

Curtis Eddy Vice President - Engineering

This notice is sent to you in accordance with the requirements of the National Traffic and Motor Vehicle Safety Act.

Matlock Truck Body and Trailer Corporation has determined that a defect which relates to motor vehicle safety exists in the brake shoes of Standard Forge axles with 12 1/4" x 7 1/2" brakes on Matlock Model MTE (electronic trailers). These axles are used only with 15" wheels and on trailers produced between February 1, 1974 and October 31, 1974.

Standard Forge and Axle Company, one of the world's largest manufacturers of trailer axles, made a change in the brake shoe attachment on some of the axles made for highway trailers early in 1974. After several months of operation, some of these axles have caused brake problems.

Standard Forge has been very prompt in their actions to correct any problems of approximately 5000 axles that are involved. Matlock received only 438 of these axles or about 9%. The other 91% have gone to others, including most of the leading trailer manufacturers.

The axles concerned are only those with 15" wheels with 12 1/4" x 5 1/4" or 12 1/4" x 7 1/2" brakes. Matlock uses only the heavier 12 1/4" x 7 1/2" brakes. If you have a trailer other than a Matlock, as a safety precaution, you might check the brakes yourself or contact your trailer supplier.

Approximately 200 of the 438 axles supplied to Matlock have been corrected already, or are in our plant and will be corrected prior to shipment of new trailers.

For your information, a copy of the letter from Standard Forge alerting trailer companies of a possible problem is enclosed.

The second paragraph of Standard Forge's letter explains the condition that might cause the malfunction and the result of such an occurance. Note that breakage can occur without warning, resulting in reduced braking power or lockup.

We instruct you to remove from service immediately any trailer that has an axle in the list that follows until the brake shoes can be replaced.

Also enclosed is a drawing showing both the correct and incorrect brake shoes. The casting number on the brake shoe will be 201103 on both the correct and incorrect brake shoe. However, the two can be easily distinguished by the shape of the end of the brake shoe. The ones that should be replaced have had the ends milled off; the replacement, or newer parts, have a closed end.

Matlock is attempting to do everything possible to minimize any inconvenience to you. Your cooperation will be appreciated. Please follow the procedure as outlined below:

1. Check the serial number on each axle used with 15" wheels. The serial number is located in the center of the axle on the name tag. If it is a Standard Forge axle and has one of the serial numbers in this list, the brake shoes should be checked and changed if they are the incorrect brake shoes. Some of the axles in this list, however, have already had the brake shoes replaced. If the brake shoes are the correct type on one end of the axle, it will not be necessary to pull the drums on the other end. We will allow one and one-half (1 1/2) hours labor per axle for checking only. In order to be reimbursed for this labor, you MUST send us the trailer serial number and the axle serial number. Be sure that the axle serial number is contained in this list, as we will not pay for labor for axles not contained in this list. 14074 thru 14083 33207 thru 33242 20199 " 20212 34011 " 34035 20213 " 20226 34036 " 34060 24535 " 24634 34111 " 34210 25128 " 25137 36406 " 36465 25348 " 25357 42395 " 42494 27572 " 27589 46360 " 46365

NOTE: If you have a Matlock trailer with 15" wheels, and you cannot read the serial number on the axle, pull the brake drum on one side of each axle to be sure that you do have brake shoes that are the correct type.

2. You may bring your trailer to our plant in Nashville or to our branch in Knoxville for the required rework. You may do the work in your own shop, or you may take it to any reputable trailer repair shop such as, but not limited to, Dorsey, Fruehauf, Great Dane, Lufkin, Nabors, Strick, Timpte, Trailmobile, or Utility. If you have any question as to where you should take your trailer for repair, you may call Mr. Jim Waters of Standard Forge and Axle Company, in Montgomery, Alabama, (205) - 269-1271.

3. The replacement parts are available now and should be ordered from Matlock Truck Body and Trailer Corporation, 1070 Visco Drive, Nashville, Tennessee 37210 - (615) - 259-2000.

The replacement parts will be shipped and invoiced to you at regular parts prices. We will allow up to five (5) hours labor per axle to replace these parts, although we believe that four (4) hours will be sufficient in most cases. Oil seats will be furnished and must be replaced.

You will be given full credit for parts, labor and freight both ways when the parts that are replaced are returned to us in Nashville, freight prepaid. The parts should be returned to the above address and marked to the attention of Mr. Tom Hartigan.

IMPORTANT: All parts returned MUST have the trailer serial number and the axle serial number on the shipping crate and on your invoice to us.

If you have sold or otherwise disposed of a trailer that was built between February 1, 1974 and October 31, 1974, please send us the name and address of the buyer or the disposition of the trailer.

We want to tell you that when you deal with Matlock, you are dealing with a reliable supplier that wants to correct this safety defect. We appreciate your business and would like to take this opportunity to solicit your order for the coming year for your trailer and truck body needs.

Yours truly,

Curtis Eddy Vice President - Engineering

ID: GRACIA.LTR

Arthur H. Bryant, Esq.
Executive Director
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, D.C. 20036

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Bryant:

This is in response to your letter requesting that the United States file an amicus curiae brief with the Seventh Circuit in the above-referenced case, in which the District Court ruled that the plaintiff's claims are preempted by Federal law.

Although the National Highway Traffic Safety Administration (NHTSA) disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief. A brief discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, NHTSA has consistently taken the view that, as a general matter, Federal motor vehicle safety standards (FMVSS) issued under 49 U.S.C. Chapter 301 preempt state common law actions only in very limited situations, which do not appear to apply here. Our views on this issue were most recently stated in the amicus curiae brief filed by the United States in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995).

To summarize, judgments under the common law can effectively create "standards" that would be expressly preempted by the "preemption clause" of Chapter 301, 49 U.S.C. 30103(b)(1),⁽¹⁾ if that clause stood alone. However, the "savings clause," 49 U.S.C. 30103(e),⁽²⁾ precludes a finding that suits seeking to recover damages on the basis of a manufacturer's failure to go beyond the requirements of a standard are expressly preempted. Moreover, such suits are impliedly preempted only in those relatively rare cases where the common law duty sought to be imposed on an auto manufacturer would create an actual conflict with a NHTSA safety standard, either because it would be impossible to comply with both state and Federal requirements or because the judgment would "stand as an obstacle to" or "frustrate the purpose of" federal law.

As we understand the facts in the Gracia case, the plaintiff was injured when she was "thrown through the windshield" of a model year 1986 Volvo truck that had a gross vehicle weight rating (GVWR) of more than 10,000 pounds and which was a "forward control vehicle." One of NHTSA's safety standards, FMVSS No. 212, "Windshield mounting," 49 CFR 571.212, imposes performance requirements for windshields of certain vehicles. The standard applies to passenger cars and to trucks with a GVWR of 10,000 pounds or less. It does not apply to certain types of trucks, including "forward control vehicles," even if they have a GVWR of less than 10,000 pounds.

The District Court concluded that NHTSA's decision to exclude forward control vehicles from the reach of the standard preempted plaintiff's product liability action. In our view, this conclusion is both factually and legally incorrect.

First, the focus by the parties and the court on the agency's rationale for excluding "forward control" trucks with a GVWR of less than 10,000 pounds from the reach of FMVSS No. 212 is misguided, since the GVWR of the vehicle involved in this crash was greater than 10,000 pounds. As with almost all of its safety standards, NHTSA did not explicitly consider applying FMVSS No. 212 to heavy trucks, regardless of whether they were forward control vehicles.

More generally, although we agree that a NHTSA decision not to regulate can preempt state common law actions, see Arkansas Elec. Co-op Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983), it will do so only where the intent to preempt is "clear and manifest." See Toy Mfrs. Of America, Inc. v. Blumenthal, 986 F.2d 615, 622-623 (2d Cir. 1992), citing Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707, 718 (1985). Here, there was no such intent, and none was indicated in any of the documents issued by the agency during its consideration of this standard.⁽³⁾

The regulatory materials quoted in the District Court's opinion indicate that the primary basis for NHTSA's exclusion of forward control vehicles (with a GVWR of less than 10,000 pounds) was a concern that it would not be "practicable" for such vehicles to comply with the existing standard.⁽⁴⁾ In no way did this reflect a NHTSA conclusion that efforts by maufacturers of forward control vehicles to reduce the possibility of ejections through the windshield (either by satisfying the performance requirements of the standard or through other means) would have an adverse impact on safety. Rather, it reflected a NHTSA determination that applying FMVSS No. 212 to such vehicles would not be appropriate in light of the statutory criteria for FMVSSs set out in Chapter 301.

A decision not to regulate on this basis does not in itself "preempt the field." In other words, while the exclusion of certain vehicles from the reach of FMVSS No. 212 relieves the manufacturers of those vehicles from any duties with respect to windshield retention under Chapter 301, it does not immunize those manufacturers from a duty of care that might be imposed under state law.⁽⁵⁾

Thus, as noted above, we believe that the District Court's opinion is incorrect. However, to our knowledge, this is the first case in which a court has improperly concluded that a NHTSA decision not to regulate an aspect of performance of certain vehicles preempts a state common law action seeking damages based on an alleged failure with respect to that aspect of performance. Therefore, in keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case. In the unlikely event that this erroneous view of the scope of "negative" Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

Thank you for bringing this matter to our attention.

Sincerely,

John Womack

Acting Chief Counsel

cc: Wayne F. Plaza, Esq.

Bruce R. Pfaff, Esq.

ref: 103(d)#108(k)

NCC-10:KWeinstein:August 9, 1996; revised:August 16, 1996

Printed: August 26, 1996 (cyb)

1. "When a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to the standard prescribed under this chapter. . . ."

2. "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."

3. Although we cannot anticipate all possibilities, it is likely that NHTSA would "negatively" preempt state law only if it concluded that a specific item or design feature would have an adverse effect on motor vehicle safety. For example, if NHTSA had decided that headrests above a certain size should not be required because they would interfere with driver visibility, a claim by a plaintiff that a manufacurer's failure to equip a vehicle with a larger headrest led to neck injuries would be preempted, even in the absence of an explicit ban on such headrests.

4. Pursuant to 49 U.S.C. 30111(a), each FMVSS "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms."

5. NHTSA takes no position on whether the windshield retention system in this particular vehicle was "unreasonably dangerous" or what duty of care a state might reasonably impose through its common law. (Presumably, NHTSA's views on the technological options avilable to manufacturers of forward control vehicles would be considered by courts and juries considering those issues.) Similarly, NHTSA takes no position on whether this crash led to a "foreseeable impact," as alleged by plaintiff, or on the relevance, if any, of the facts that the plaintiff apparently was not seated in a designated seating position and apparently was not wearing a safety belt.

ID: nht87-2.22

TYPE: INTERPRETATION-NHTSA

DATE: 06/24/87

FROM: DIETMAR K. HAENCHEN -- VOLKSWAGEN OF AMERICA, INC.

TO: ERIKA Z. JONES -- NHTSA

TITLE: REQUEST FOR INTERPRETATION - FMVSS 205

ATTACHMT: ATTACHED TO LETTER DATED 11/03/88 FROM ERIKA Z JONES TO DIETMAR K HAENCHEN; REDBOOK A32 (2), STANDARD 205

TEXT: Dear Ms. Jones:

The design of passenger cars has changed in recent years to reduce aerodynamic drag and increase fuel efficiency. Volkswagen is planning to improve interior comfort and reduce energy consumption in future car models by introducing selected areas with re duced energy transmission via ceramic dots on the car's glazing. The reduced energy radiation into the interior increases driver's and passenger's comfort and results in increased active safety. We believe that the application of shaded areas on the wi ndows complies with the applicable safety standards. Different methods exist for shading those areas; the glass may be tinted like shade bands applied to windshields, or small ceramic dots can be applied on the glass surface having the same effect on th e reduction of energy transmission. The sections of glass selected for the application of the ceramic paint could, if not for styling aesthetics, be covered with sheet metal in order to avoid questions of interpretation of FMVSS 205. However, the styli ng incentive is compelling and driver visibility with the proposed configuration is better than total blockage with sheet metal, which would clearly be allowable. We are, therefore, seeking the agency's opinion of this concept which we are considering fo r the next new model line. While the agency does not give advance approval of specific product designs, the agency's opinion of whether the configuration proposed herein appears to comply with the applicable Federal Motor Vehicle Safety Standards will a id manufacturers in determining whether the numerous variations of the concept applied to various vehicles will comply with the standards.

Volkswagen has reviewed Standard 205 which in turn refers to ANS z26.1 (1980) which establishes requirements for safety glazing material for use in passenger cars. In Section 4.2 of ANS z26.1, specifications for items 1 and 2 glazing which VW intends to apply to the windshield and side/rear glass respectively refer to footnotes 1 and 3 when specifying Test 2 - Light Transmittance. Those footnotes allow areas of the glazing to have less than 70% light transmittance if the areas are not within the "leve ls required for driving visibility".

The term "levels requisite for driving visibility" has been used by the agency in interpretations and on several occasions has been addressed more precisely such as the interpretation to Mr. G. Nield on 15 February, 1974 as follows: "We (the agency) cons ider the word 'levels' in Standard 205 to mean vertical heights in relation to driver's eyes." To our knowledge the agency has not gone beyond the above interpretation in further defining "levels requisite for driving visibility".

In order to comply with FMVSS 205 Volkswagen deems it appropriate to use engineering judgement, applicable standards and technical recommendations to define these "levels" so that driving visibility is properly maintained with the installation of glazing material having areas within a single sheet of less than 70% light transmittance.

Footnote 1 of ANS z26.1 - 1980, although not expressively stated, refers mainly to shade bands and has been so construed and treated by the industry. The automobile industry so far has determined which areas are "requisite for driving visibility" and ha s marked the shaded areas as required. In these cases the industry determined how far shade bands can extend donward from the upper edge of the window and still be in compliance with FMVSS 205.

SAE J100 (passenger car glazing shade bands) also refers to ANS z26.1 when defining "glazing shade band" as "an area of the vehicle glazing through which light transmission is less than required for use at levels requisite for driving visibility by USAS z26.1". The SAE recommends shade bands above the 95th eyellipse only, but acknowledged at that time that substantial research to establish the driver's field of view did not exist. Volkswagen also believes that these data do not exist currently.

Guidelines for a determination of "levels" which extend upward from the bottom edge of the vehicle glazing are addressed in Directive 77/649 as amended in 81/643 of the European Economic Community (EEC). The directive specifies levels requisite for driv ing visibility in the driver's 180 degrees forward direct field of vision. Section 5.1.3 specifies the boundaries for the driver's forward direct field of vision by a horizontal plane through V[1] (upper boundary) and by three planes at downward angles of 4 degrees through V[2] (lower boundary). The latter describes the minimum field of view for small persons through the lower portion of the glazing.

The EEC in its effort to set angular limits for the driver's forward direct field of vision used anthropometric data of horizontal head and eye movement to arrive at the 180 degrees limit. The SAE in its information report J985 arrives at the same figur e when the angles of "maximum head movement (is) 60 degrees left and 60 degrees right" and "the eyes can turn 30 degrees to the right in one rapid, smooth movement", are combined.

For the rear visibility in the U.S., the "levels requisite for driving visibility" are not specified if a passenger side rearview mirror is used according to FMVSS 111. Technically, the complete rear glazing can be blocked by a vehicle manufacturer if a passenger side rearview mirror is installed as standard equipment. Volkswagen intends to install a passenger side outside mirror as standard equipment in conjunction with the subject shading configuration and also to provide an area in the rear glazing with transmissability of greater than 70%.

With this background, Volkswagen is planning to include either tinted bands or ceramic dots on glazing as described in Attachments I and II. Volkswagen believes that this concept clearly allows light transmittance in excess of 70% in the areas requisite for driving visibility and consequently should adequately satisfy the safety needs for overall driving visibility.

Volkswagen has tested these boundaries according to the specifications of 77/649/EEC and concluded that ceramic dots in the area defined in 5.1.3 very well cover the vertical heights in relation to even small driver's eyes, which are "requisite for drivi ng visibility". In addition we have designated the area adjacent to the right and left hand outside mirrors as requisite for driving visibility.

This proposal has been approved by the German government (KBA) as recommended by the Technical Service Hannover. This approval was based on the fact that it complies with the driver's direct field of view (forward 180 degrees) and that unobstructed outs ide rearview mirrors are used on both sides to supplement the inside rearview mirror for the driver's indirect field of view. This approval is based on compliance with the applicable EEC Directive and therefore will likely be acceptable to all Common Ma rket countries.

Volkswagen requests the agency's opinion of this proposal and an interpretation of whether the markings described in Section 6 of ANS z26.1 would be required to show the limits of the area that is intended to comply with the 70% transmittance requirement . If required, Section 6 states that the glazing "shall be permanently marked at the edge of the sheet to show the limits of the area that is intended to comply with Test No. 2" (70% transmissability). Interpretation is requested of where these markings should be placed for the configurations shown in Attachments I and II if they are required. Since this is under consideration for the next model year, a timely response is requested.

ATTACHMENTS

ATTACHMENT I

Lichtdurchlassigkeit zwischen 75% and 82% LIGHT TRANSMITTANCE BETWEEN 75% AND 82%

Lichtdurchlassigkeit von 30% , 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit 30% LIGHT TRANSMITTANCE 30%

Lichtdurchlassigkeit zwischen 75% und 77% LIGHT TRANSMITTANCE BETWEEN 75% AND 77%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit zwischen 72% und 75% LIGHT TRANSMITTANCE BETWEEN 72% AND 75%

Warmeschutzverglasung HEAT ABSORBING GLASS

E/KK - AA 87.01.

ATTACHMENT II

Lichtdurchlassigkeit zwischen 75% und 82% LIGHT TRANSMITTANCE BETWEEN 75% AND 82%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit 30% LIGHT TRANSMITTANCE 30%

Lichtdurchlassigkeit zwischen 75% und 77% LIGHT TRANSMITTANCE BETWEEN 75% AND 77%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit zwischen 72% und 75% LIGHT TRANSMITTANCE BETWEEN 72% AND 75%

Warmeschutzverglasung HEAT ABSORBING GLASS

E/KK - AA 87.01.

ID: nht90-2.21

TYPE: INTERPRETATION-NHTSA

DATE: APRIL 24, 1990

FROM: JERRY RALPH CURRY

TO: D. H. BURNEY -- AMBASSADOR OF CANADA

TITLE: NONE

ATTACHMT: LETTER DATED 3-16-90 TO JERRY R. CURRY, NHTSA, FROM D. H. BURNEY, AMBASSADOR OF CANADA TEXT:

Thank you for your letter of March 16, 1990, expressing the concern of your country about this agency's new regulations on importation of motor vehicles and equipment.

Canada is concerned that, under P.L. 100-562, the Imported Vehicle Safety Compliance Act of 1988, Canadian vehicle brokers, dealers, and private citizens will not, for all practical purposes, be able to export new or used Canadian market vehicles to the United States. It is concerned further that Canadian individuals and firms will be precluded from providing conformance goods and services for vehicles exported to the United States. Canada therefore requests that this agency modify its regulations wit h respect to Canadian market vehicles, recognizing their near-compliance with the Federal Motor Vehicle Safety Standards, and accommodating their entry in the least costly and burdensome manner. You have five specific requests, and I shall address each.

Preliminarily, I want to note several things. First, my assurance that this agency gave very careful consideration to the concerns of Transport Canada in adopting final regulations under the 1988 Act, as well as those expressed by Canadian companies tha t commented on the proposed regulations. As we noted in the notices proposing and adopting those regulations, our discretion to make changes in the regulations was narrowly circumscribed in many instances by the detailed language of that Act. On a more technical level, I want to note that your understanding of our new regulations expressed in paragraphs (a) through (g) on page 2 of your letter is essentially correct. However, with respect to your paragraph (d), please note that determinations of vehi cle eligibility for importation may also be made by me as Administrator on my own initiative, and need not be pursuant to a petition. Also, as to paragraph (e), I would like to point out that the bond processing fee, proposed to be *$125, is only $4.35 (however, under paragraph (f) the bond is not less than 150 percent of the dutiable value of the vehicle).

Your first request is that the agency "recognize Canadian market vehicles as a special class of non-complying vehicles requiring only minor changes to meet the FMVSS." The 1988 Act was enacted on October 31, 1988, and became effective January 31, 1990. I regret to say that none of its provisions authorize the agency to directly distinguish between non-complying vehicles of Canadian manufacture and those originating in other countries.

However, the eligibility provisions that you reference in paragraph (d) do permit a basis for minimizing some of the burden that the 1988 Act imposes. We begin with the premise that if a Canadian vehicle has not been certified by its manufacturer as in conformance with U.S. standards, then it cannot be presumed to conform in all respects to the U.S. standards. Canadian and U.S. safety standards do differ in some ways (e.g., mandatory automatic crash protection for U.S. market passenger cars manufactur ed on and after September 1, 1989). Nevertheless, we believe that enough similarity may exist to support a finding that a Canadian passenger car is "substantially similar" to a U.S. passenger car, justifying a determination that it is eligible for impor tation into the United States, and capable of conversion to meet U.S. safety standards. Further, such a finding may be made on our own initiative. I am pleased to inform you that NHTSA is publishing a notice of tentative determination that would cover a ll passenger cars certified as meeting the Canadian Motor Vehicle Safety Standards, and that were manufactured up to September 1, 1989. A copy of the notice is enclosed for your reference. After receiving and considering public comment, we will make a final decision on this matter. If we decide to adopt our tentative determination as a final determination, your first request would, in effect, be granted.

Your second request is that we "exempt such vehicles from the fees." These fees are the ones mentioned in paragraphs (c), (d), and (e) of your letter, the registered importer annual registration fee, the vehicle eligibility petition fee, and the bond pro cessing fee. Each fee is specifically required by the 1988 Act, and must be established in advance of the fiscal year in which it is effective. The registered importer fee is required to cover agency costs for administration of the registration program . The vehicle eligibility fee is required to cover the agency's costs in making and publishing eligibility determinations. The bond processing fee is required to reimburse the U.S. Customs Service for its costs in processing the agency's conformance bo nd that accompanies each nonconforming vehicle. Congress provided no authority to waive these fees, or to modify them during the fiscal year that they are in effect. Thus, the fees that have been established must remain in effect until October 1, 1990.

When we begin the review that will lead to next year's fees, we shall be happy to consider whether some provision may be made for Canadian market vehicles. In the meantime, I would like to point out that under our notice of tentative determination on el igibility of Canadian vehicles, the fee of $1,560 would cover the blanket determination of all passenger cars, and would not be applied to each individual model and model year of passenger car. This action would effectively moot Canada's second request that Canadian market passenger cars be exempted from the determination fee.

Canada's third request is to "exempt them from the bonding requirement." The 1988 Act requires the importer of a non-conforming vehicle to furnish an appropriate bond to ensure that the vehicle will be brought into compliance, or will be exported or aban doned to the United States. This is not a new requirement; ever since January 1, 1968, each nonconforming vehicle, Canadian or otherwise, has been required to be accompanied by a conformance bond upon its entry into the United States. The 1988 Act prov ides us with no authority to exempt Canadian vehicles, and does not distinguish degrees of nonconformity. Therefore, we believe that we are unable to grant Canada's request, absent specific authorization by the U.S. Congress.

The fourth request is to "exempt them from the requirement that they be imported by registered importers, who must be U.S. citizens." This request raises two issues: whether Canadian market cars may be imported by persons other than registered importers , and whether registered importers must be U.S. citizens. As to the first issue, the 1988 Act does allow one alternative to direct importation by a registered importer. That is, a person other than a registered importer may import a nonconforming vehicl e if he has a contract with a registered importer to perform conformance work. This would allow a Canadian citizen to import a Canadian market car, without himself becoming a registered importer.

The second issue is whether a Canadian company is permitted to be a registered importer. We believe that a registered importer is a person who is physically present in the territory in which importation occurs, as opposed to an exporter, who is outside t hat territory. While we are not conversant with the laws of the individual States, we believe that a Canadian company could qualify to do business within an individual State, and become a registered importer. Thus, it is not necessary to be a U.S. "citiz en", but it is necessary to be subject to U.S. jurisdiction. The 1988 Act requires the registered importer regulation to contain requirements for recordkeeping, and inspection of records and facilities. Since the jurisdiction of the National Traffic and Motor Vehicle Safety Act does not extend beyond the boundaries of the United States, we believe that it would be difficult to enforce our provisions on inspection of premises, documents, etc. in the territory of another country.

This brings us to your fifth and final request, that we "allow modifications to be done in either the United States or Canada." Under current regulations, conformance work is permitted to be performed outside the united States. However, vehicles modifi ed in this fashion must be admitted under the same procedures as if they had not been modified. This allows the agency to review the documents on pre-importation conversion work, to ensure that it has been satis- factorily accomplished, before the confo rmance bond is released. Accordingly, we believe that the concern underlying this request has already been accommodated.

If, after reviewing this letter, you have further suggestions for reducing the burdens that the new law may have imposed on importations of Canadian-manufactured vehicles, I would be happy to consider them.

Enclosure

ID: aiam4010

Dear Mr. Ori: Thank you for your letter of June 24, 1985, to Stephen Oesch of m staff concerning your meeting to discuss the interaction of Federal and State laws affecting the tinting of motor vehicle windows. I am glad that you and the other members of your committee found the meeting as helpful and productive as Mr. Oesch did.; I believe you will be interested to learn that subsequent to you meeting, the agency has corresponded with Congressman John S. McCain III concerning conflicting State laws on motor vehicle window tinting, a copy of the agency's letter to Mr. McCain is enclosed. We understand that Mr. McCain has also written directly to the American Association of Motor Vehicle Administrators on this issue. We look forward to discussing possible joint actions to resolve the apparent problems in this area.; As you have requested, we have reviewed your interpretation of Mr Oesch's answers to the questions discussed at your meeting and find that you have accurately summarized them. To ensure a full understanding of each of the answers, we have provided below a complete response to each of the questions.; First, I would like to review some background information. The Nationa Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration to issue Federal Motor Vehicle Safety Standards applicable to new motor vehicles and items of motor vehicle equipment. In 1967, the agency issued Federal Motor Vehicle Safety Standard No. 205, *Glazing Materials*, which sets performance requirements for glazing materials used in new motor vehicles and glazing materials sold as items of replacement equipment. The performance requirements of the standard include ones regulating the light transmittance and abrasion resistance of glazing. The standard went into effect on January 1, 1968.; Vehicle manufacturers are responsible for certifying that al components on their vehicles comply with applicable Federal Motor Vehicle Safety Standards prior to sale. A manufacturer of new vehicles must certify that the glazing used in windows requisite for driving visibility, whether clear or tinted, conforms with all of the requirements of the standard, including those on light transmittance and abrasion resistance. Any person who manufactures or sells a new vehicle which does not conform to applicable safety standard (sic) is subject to civil penalties and recall action under the National Traffic and Motor Vehicle Safety Act.; In 1974, Congress amended the Vehicle Safety Act to address the proble of persons tampering with safety equipment installed on a motor vehicle. The 1974 amendments added section 108(a)(2)(A) to the Act. That section provides, in part, that:; >>>No manufacturer, distributor, dealer, or motor vehicle repai business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . . .<<<; Thus, no manufacturer, distributor, dealer, or motor vehicle repai business may add tinting to glazing materials of a used motor vehicle, if that tinting would 'render inoperative' the glazing's compliance with Standard No. 205. Based on the law and regulations discussed above, we have provided the following answers to your questions.; *Question (1)*: What impact does Federal Motor Vehicle Safety Standar No. 205 have upon commercial installers of tinting materials if the installation is performed:; (a) prior to the sale of the vehicle? *Answer*: If a commercial installer places tinting film on glazing in new vehicle prior to the sale of the vehicle, that person must certify that the glazing continues to be in compliance with the requirements of Standard No. 205. Thus, for example, the light transmittance through the combination of tinting film and the glazing must be at least 70 percent in the case of glazing used in windows requisite for driving visibility. Similarly, the combination must also meet the abrasion resistance and other requirements of the standard.; (b) after its first sale? *Answer*: If a commercial installer adds tinting material to a use vehicle and the material reduces the light transmittance of the glazing to a level below 70 percent or otherwise reduces the compliance of the glazing with one of the standard's requirements, the agency would consider that action a rendering inoperative of the glazing's compliance with Standard No. 205 in violation of section 108(a)(2)(A) of the Vehicle Safety Act. Section 108(a)(2)(A) does not prohibit tinting by commercial businesses, it merely limits the use of tinting.; *Question (2)*: What impact does Standard No. 205 have upon individual who install tinting on their own vehicles?; *Answer*: Section 108(a)(2)(A) of the Vehicle Safety Act does not appl to individual vehicle owners. Thus, individual vehicle owners can, themselves, add any level of tint to the windows in their vehicles without violating Federal law. States retain the authority to set their own laws regulating the application of window tinting by individual vehicle owners.; *Question (3)*: What impact does Standard No. 205 have upon th manufacture and sale of window tinting material?; *Answer*: Standard No. 205 does not regulate the manufacture or sale o window tinting materials, it affects only the application of the tinting materials to windows in a motor vehicle. States retain the authority to issue laws affecting the manufacture and sale of such materials.; *Question (4)*: What impact does Standard No. 205 have on new vehicle versus old vehicles?; *Answer*: All new motor vehicles manufactured after January 1, 1968 must be certified as complying with Standard No. 205. As discussed in our response to Question 1(b), the tinting of used vehicles, manufactured after January 1, 1968, by commercial businesses would be affected by section 108(a)(2)(A) of the Vehicle Safety Act.; *Question (5)*: What specifically is a State preempted from doing b regulation or Federal law?; *Answer*: Federal law generally preempts any inconsistent state laws o the same subject covered by Federal Motor Vehicle Safety Standards. Section 103(d) of the Vehicle Safety Act provides:; >>>Whenever a Federal motor vehicle safety standard . . . is in effect no State or political subdivision of a State shall have any authority to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment , any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.<<<; Thus, States may not establish provisions regarding tinting or othe vehicle window requirements which are either more or less stringent than those provided by Standard No. 105. States may establish and enforce identical requirements, they may also, as part of their motor vehicle inspection regulations, prohibit vehicle owners from modifying their windows, through tinting or otherwise, in any way that would violate Standard No. 205.; *Question (6)*: Must a state develop laws or regulations governing th actions of individuals pertaining to window tinting? If a state were to adopt Standard No. 205 which apparently governs manufacturers and commercial installers and adopt no other rules or regulations pertaining to actions taken by individuals regarding window tinting would that state be subject to Federal sanctions? Does a state have to adopt Standard No. 205?; *Answer*: There is no Federal requirement that States adopt law regulating the tinting of motor vehicle windows by vehicle owners. The agency does not have authority to sanction a State if the State decides not to regulate the actions of individual vehicle owners. As explained in our response to question 5, if a state adopts a law that regulates tinting by commercial businesses, then its laws must not be more or less stringent than Standard No. 205. States are not required to adopt a law identical to Standard No. 205 if that applied *only* to tinting by individual vehicle owners.; *Question (7)*: If a state were to adopt regulations or laws pertainin to the actions taken by individuals with regard to window tinting, would those laws or regulations have to mirror Standard No. 205? How could they be different?; *Answer*: As explained in our response to question 6, State law regulating tinting by individual vehicle owners do not have to be identical to Standard No. 205. We believe that NHTSA and the States have a common interest in promoting highway safety and in minimizing inconvenience to traveling motorists. We are interested in working with the States to see that State laws regulating tinting by vehicle owners are consistent.; *Question (8)*: Some would prefer that Standard No. 205 be amended t make glazing requirements for passenger vehicles and multipurpose passenger vehicles the same.; *Answer*: We understand that AAMVA is considering filing a petition fo rulemaking on this issue. Part 522 of our regulations sets forth our procedure on rulemaking petitions. A copy is enclosed for your reference.; *Question (9)*: Is it anticipated that there will be any materia change to Standard No. 205 in the near future?; *Answer*: The agency does not have any pending rulemaking actions o Standard No. 205. As with all of our standards, as the agency acquires data indicating a need to change a standard or if we receive a petition for rulemaking, we would determine if a rulemaking proceeding is justified.; *Question (10)*: May a manufacturer of window tinting materials sell product that does not conform to Standard No. 205? If not, is the sale of such a product based on its nonconformance to Federal standards?; *Answer*: Standard No. 205 does not regulate the manufacture or sale o tinting materials. Thus, there is no Federal regulation that applies to a manufacturer who sells tinting materials that, when applied to motor vehicle glazing, would render inoperative the compliance of the glazing with Standard No. 205. Although the agency would encourage all manufacturers of tinting materials to sell products which can be used on a vehicle and not affect the vehicle's compliance with Standard No. 205, we do not monitor the sale of glazing materials. A state may adopt and enforce its own law regulating the manufacture and sale of tinting materials.; *Question (11)*: What does requisite for driving mean? *Answer*: The agency considers all windows in a passenger car to b requisite for providing the driver with a sufficient view to operate safely his or her car.; You also asked whether the agency has any guidelines for medica exemptions to Standard No. 205. Standard No. 205 does not have provisions concerning medical exemption. I hope this information is of assistance to you. If you have further questions, please let me know.; Sincerely, Jeffrey R. Miller, Chief Counsel

ID: 3275yy

Mr. Edward M. Klisz
Chief, Light Tactical Vehicle Branch
Department of the Army
United States Army Tank-Automotive Command
Warren, MI 48397-5000

Dear Mr. Klisz:

This responds to your letter regarding foreign-made tires that the Army procured in Southwest Asia. You indicated that your office is trying to ascertain the suitability of these tires, not all of which are marked with a "DOT" certification, for Army use. You enclosed a list of the tires and, for those marked with "DOT", requested this office to "determine if the DOT codes are accurate according to [our] records." You also requested that we verify your understanding of the general requirements applicable to foreign tire manufacturers, and the process by which such manufacturers certify their tires as complying with our standards. I am pleased to have this opportunity to answer your questions.

For your information, I have enclosed a copy of the National Traffic and Motor Vehicle Safety Act (the Safety Act). Section 103 of the Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. The Safety Act defines a motor vehicle safety standard as, "a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria." [See 102(2)].

The Safety Act then requires that all motor vehicles and motor vehicle equipment sold or imported into the United States, regardless of whether the product is manufactured in the U.S. or abroad, must comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act provides:

no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114...

In the case of tires, this provision of the Safety Act means that a foreign tire manufacturer would be prohibited from exporting its new tires to the United States unless the manufacturer certified that the tire complies with the applicable U.S. safety standards. All new tires for use on passenger cars must be certified as complying with Federal Motor Vehicle Safety Standard No. 109 (49 CFR 571.109), and all new tires for use on other motor vehicles must be certified as complying with Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). These standards specify performance requirements (strength, endurance, high speed performance, and, for passenger car tires only, resistance to bead unseating), marking requirements (treadwear indicators and labeling information), and tire and rim matching information requirements that must be met by all tires to be sold in the United States.

The process of certifying compliance with the applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, the European nations require manufacturers to deliver tires to a governmental entity for testing. After the governmental entity itself tests the tires, the government approves those tires for use and assigns an approval code to the tires. In place of this sort of process, the Safety Act establishes a "self-certification" process for tires sold in the United States. Under this self-certification process, the tire manufacturer, not any governmental entity, certifies that its tires comply with the applicable safety standards.

Further, the Safety Act does not require that a manufacturer base this certification on a specified number of tests or any tests at all; a manufacturer is only required to exercise due care in certifying its tires. It is up to the individual tire manufacturer to determine in the first instance what test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that its tires comply with the applicable Federal motor vehicle safety standards. Once a manufacturer has determined that its tires meet the requirements of the applicable standard, it certifies that compliance by molding the letters "DOT" on one sidewall of each certified tire.

As stated above, NHTSA does not do any pre-sale approval or testing of tires. Instead, the agency routinely tests certified tires that have been sold to determine whether the tires do in fact comply with applicable standards. For these enforcement checks, the agency purchases new tires and tests them according to the procedures specified in the standard. If the tires pass the tests, no further steps are taken. If the tires fail the tests and are determined not to comply with the standard, the tire manufacturer is required to recall the tires and remedy the noncompliance. Turning now to your particular situation, it is not clear how helpful these requirements will be in assessing the current safety performance of the tires procured during Operation Desert Storm/Desert Shield. In the case of such tires that are marked with "DOT", that mark means the tire manufacturer certified that, when new, the tires complied with all applicable safety standards. However, the presence of a "DOT" symbol on a used tire does not mean that the tire in its current condition would still comply with the new tire standards. There are many instances in which used tires would be unlikely to comply with the new tire standards, simply because of normal environmental factors and without any fault in the construction of the tire. Such environmental factors include, but are not limited to, a hole larger than a nail suffered by the tire while in service, damage to the inner liner of the tire from being run flat, damage to the bead area of the tire during mounting, damage to the sidewall from running against rocks, curbs, and so forth. In each of these instances, the vehicles on which the tires have been used and the conditions in which those vehicles have been operated would be at least as important in determining the tire's current performance capabilities as would the tire's capabilities when it was new.

Further, the absence of a "DOT" symbol on a tire purchased outside of the United States does not necessarily mean that the tire, when new, would not have complied with the applicable tire safety standard. On the contrary, it is possible that the new tire would have, if tested, actually been found to comply with those safety standards. The only definitive conclusion you may draw about a tire without a "DOT" symbol that is purchased outside the United States is that the tire's manufacturer, for whatever reason, did not certify that tire's compliance. It could be that the tire did not comply when new, or it could be that the manufacturer did not produce the tire for importation and eventual sale in the U.S., and therfore felt no need to certify the tire.

You noted in your letter that this agency has established a requirement in 49 CFR Part 574 that all tire manufacturers, both foreign and domestic, must obtain an identification mark from NHTSA and label each of their tires with that mark. Before NHTSA will assign an identification mark to a tire manufacturer headquartered outside the United States, the manufacturer must designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. However, the designated agent of the manufacturer only acts as the agent for service of process; the manufacturer's designated agent is not responsible for the certification of the tires. Only the manufacturer certifies that the tires comply with all applicable standards and, as explained above, that certification must be made (and indicated with a DOT symbol) before the tire would be allowed to enter the United States.

Finally, you requested in your letter that we review the list of tires you submitted and verify the accuracy of the "DOT" marks shown. I believe this request was based upon a misunderstanding of NHTSA's role in the certification process. Since manufacturers are not required to deliver their tires to NHTSA for testing, or register their products with the agency, the agency has no way to "verify the accuracy" of the DOT codes you submitted. To repeat, the DOT code molded into the sidewall of a tire represents the manufacturer's self-certification that the tire complies with applicable standards; the DOT code is not a statement or certification by NHTSA that the tire complies with our standards.

NHTSA would only have information about the "accuracy" of the DOT codes (i.e., whether the tires so marked actually meet the standards), in the event that the agency had conducted one of its random enforcement checks on a new tire like the one in question. Accordingly, we reviewed our enforcement records to determine whether NHTSA performed compliance tests on new versions of any of those tires. Having searched the agency's data base for the brands, types, and years of the listed tires, we found that the agency did not conduct compliance tests on any of these tires.

I hope this information is helpful. Please contact Stephen Kratzke of my staff at this address or by telephone at (202) 366-2992 if you have further questions.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

/ref: Std 119, Part 574 d:1/17/92

ID: 08-006052drn vasatko

ID: 22250

Trooper Dene Kay
Utah Highway Patrol
P.O. Box 1112
St. George, UT 84771





Dear Trooper Kay:

This responds to your letter to this agency regarding Federal standards on "altering" motor vehicles, specifically with regard to taillights, door handles, and windshield wipers. I will begin with some background information on National Highway Traffic Safety Administration (NHTSA) standards and then address each of your questions in turn.

Background

Chapter 301 of Title 49, United States Code (the Act), authorizes NHTSA to issue safety standards for new motor vehicles and new motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the U.S. must comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS) set forth in 49 CFR Part 571. Manufacturers of motor vehicles must certify compliance of their products in accordance with 49 CFR Part 567, Certification (copy enclosed). Also enclosed is a brochure entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment," which includes a listing of FMVSS that apply to different vehicle type classifications.

Persons altering a new motor vehicle prior to its first retail sale to a consumer are considered vehicle alterers under NHTSA's certification regulation, 49 CFR 567.7, Requirements for Persons who Alter Certified Vehicles. A person who alters a previously certified motor vehicle must affix an additional certification label to the vehicle which states that the vehicle, as altered, conforms to all applicable FMVSS.

Manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a motor vehicle after its first retail sale are prohibited by 49 U.S.C. 30122 from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable FMVSS. However, the "make inoperative" provision does not prohibit consumers from modifying their own vehicles, even if such modifications adversely affect the compliance of the vehicle with the FMVSS. Such modifications may, nevertheless, be regulated by State law.

I will now address each of your specific questions.

Taillights

You state that individuals are installing clear taillight lenses with no red reflectors. The Federal requirements for motor vehicle lighting equipment are established by FMVSS No. 108 (49 C.F.R. 571.108), Lamps, Reflective Devices and Associated Equipment, which applies to lighting equipment on new vehicles and replacement equipment for that original lighting equipment. Paragraph S5.8, Replacement Equipment, of FMVSS No. 108 requires lighting equipment manufactured to replace original lighting equipment to be designed to conform to FMVSS No. 108.

Table I and Table III of FMVSS No. 108 require reflex reflectors (on the rear and the sides of the vehicle at the rear), tail lamps, and stop lamps to be red in color. The color red is defined by Society of Automotive Engineers (SAE) Standard J578c, Color Specifications for Electric Signaling Devices, February 1977, which S5.1.5 of Standard No. 108 incorporates by reference. Thus, the manufacture of clear lenses or lamps intended to replace lenses or lamps whose original color of light emitted was red is a violation of S5.8 of FMVSS No. 108, and the manufacture, importation, and sale of clear lenses or lamps for these purposes is a violation of 49 U.S.C. 30112. You also state that these taillight lenses do not have red reflectors; this too would be a violation.

If a noncompliant lamp or lens is installed as original equipment, the vehicle manufacturer is in violation of FMVSS No. 108. If a noncompliant lamp or lens is installed by a manufacturer, dealer, distributor, or motor vehicle repair business as a replacement item, that entity is in violation of 49 U.S.C. 30122. Note, however, that no federal laws or safety standards prohibit an owner of a vehicle from installing the clear lenses, even if the installation renders inoperative the compliance of the vehicle with an applicable safety standard.

You should note that many lamps such as you describe have been recalled. Many were also missing side markers and side reflectors in red.

Whether it is legal to drive a vehicle with clear lenses installed by the vehicle's owner is a question to be answered under the laws in effect where the vehicle is driven. While we cannot provide an opinion about Utah law, we note that our search of the Utah administrative code showed Rule R714-200-3, "Standards for Vehicle Lights and Illuminating Devices," incorporates FMVSS No. 108 as the standard governing motor vehicle lighting equipment. Thus, it appears that motor vehicle lighting equipment that does not comply with FMVSS No. 108 may also be illegal for use in your state.

Door Handles

You state that individuals are removing vehicles' outside door handles and replacing them with hidden switches to open the doors. FMVSS No. 206 (49 C.F.R. 571.206), Door Locks and Door Retention Components, applies to new motor vehicles and includes requirements that may affect this type of modification. The standard does not require that motor vehicle doors have outside door handles. However, the standard does require each motor vehicle door to "be equipped with a locking mechanism with an operating means in the interior of the vehicle." (49 C.F.R. 571.206, S4.1.3). When the locking mechanism on the side front door is engaged, "the outside door handle or other outside latch release control shall be inoperative." (S4.1.3.1, emphasis added). When the locking mechanism on the side rear door is engaged, "both the outside and inside door handles or other latch release controls shall be inoperative." (S4.1.3.2, emphasis added).

We consider the hidden switches you described in your letter to be "other latch release controls." Thus, these hidden switches must be inoperative when the locking mechanism on the doors is engaged.

If these hidden switches are installed by an alterer prior to first sale, then the alterer must certify that the vehicle continues to comply with all of the safety standards affected by the alteration. If the switches are installed by a manufacturer, distributor, dealer, or motor vehicle repair business after first sale, the installation must not render inoperative the compliance of the vehicle with any applicable safety standard, including FMVSS No. 206. However, no federal laws or safety standards prohibit an owner of a vehicle from installing the switches, even if the installation renders inoperative the compliance of the vehicle with any applicable safety standard. Such a modification could, however, be regulated by State law.

Windshield Wipers

You also state that individuals are removing vehicles' windshield wipers and replacing them with "just one large wiper." FMVSS No. 104 (49 C.F.R. 571.104), Windshield Wiping and Washing Systems, specifies windshield wiper requirements for new passenger cars, multipurpose passenger vehicles, trucks, and buses.

The essential feature of a windshield wiper system, from a safety standpoint, is its ability to clear a specific portion of the windshield. The number of wipers necessary to provide the driver with a sufficient field of view is not specified in FMVSS No. 104. Therefore, the number of wipers is immaterial so long as the minimum percentages of critical areas are cleared.

All of the aforementioned vehicles must have a power-driven windshield wiping system that meets specific frequency or speed requirements, e.g., cycles per minute, as identified in the standard. FMVSS No. 104 requires that passenger car windshield wiping systems wipe that specified percentages of the critical windshield areas defined in that standard and SAE Recommended Practice 903a, May 1966. As you will see in copies of the enclosed documents, defining these critical windshield areas is a complex process.

Additionally, FMVSS No. 104 requires that passenger cars, multipurpose passenger vehicles, trucks, and buses have windshield washing systems. A passenger car's windshield washing system in conjunction with its associated wiping system shall clear the critical windshield areas identified above. For multipurpose passenger vehicles, trucks, and buses, the standard states that the critical windshield areas may be specified by the vehicle manufacturer.

The number of windshield wipers required is not specified by this standard.

If the single wiper described in your letter is installed by an alterer prior to first sale, then the alterer must certify that the vehicle continues to comply with all of the safety standards affected by the alteration. If the wiper is installed by a manufacturer, distributor, dealer, or motor vehicle repair business after first sale, the installation must not render inoperative the compliance of the vehicle with any applicable safety standard, including FMVSS No. 104. However, no federal laws or safety standards prohibit an owner of a vehicle from installing the wiper, even if the installation renders inoperative the compliance of the vehicle with any applicable safety standard. Such a modification could, however, be regulated by State law.

I hope you find this information helpful. If you have any further questions, please contact Mr. Dion Casey in my office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:104
d.3/8/01

ID: nht79-3.3

DATE: 08/28/79

FROM: AUTHOR UNAVAILABLE; F. Berndt for Joan Claybrook; NHTSA

TO: Honorable David Boren - U.S. Senate

TITLE: FMVSS INTERPRETATION

TEXT:

AUG 28 1979

Honorable David Boren United States Senate Washington, D.C. 20510

Dear Senator Boren:

This responds to your letter of August 2, 1979, on behalf of your constituent, Mr. Thomas J. Weaver, regarding problems he is having with the automatic belt system on his Volkswagen Rabbit. Apparently, the belt system does not properly fit Mr. Weaver, and Volkswagen has stated it cannot lower the driver's seat to correct the problem because of Federal regulations.

Before getting into the details of this matter, I want to express my admiration for Mr. Weaver in his efforts to obtain the benefits of his safety belts. It is discouraging to hear that a person wishing to use his belts is unable to do so. However, I must stress that we have no authority to compel a manufacturer to alter a vehicle in a situation like this. The most we can do is attempt to clarify whether it is federal law or other factors that led to Volkswagen's reluctance to make the alterations desired by Mr. Weaver.

The discussion in the letter you received from Mr. Kenneth Adams, Volkswagen's Washington representative, needs some clarification. Safety Standard No. 208, Occupant Crash Protection (49 CFR 571.208), requires passenger cars to be equipped with safety belts that adjust to fit drivers ranging in size from a 5th-percentile adult female (weighing about 102 pounds) to a 95th-percentile adult male (weighing about 215 pounds). Therefore, the regulation requires safety belts to fit at least 90 percent of the driving population. Of course, nothing prohibits manufacturers from designing their belts to fit 100 percent of the population, and the agency encourages manufacturers to do so. The standard is only a minimum requirement, allowing manufacturers some leeway because of unusual body sizes at either end of the spectrum.

Mr. Adams also stated in his letter to you that lowering the seat would change the performance characteristics of Volkswagen's belt system and would make it necessary "to begin the entire testing process for certification again." This statement too requires clarification. At the present time, Safety Standard No. 208 does not require safety belts as installed in motor vehicles to meet dynamic performance requirements. Dynamically testing safety belts would entail restraining a test dummy with a vehicle's safety belts and testing their performance by crashing the vehicle into a test barrier. In such testing, the position of the seat in relation to the belts would be important. However, the current requirements do not involve testing safety belts inside the vehicle. They require that the belts meet certain laboratory tests and that belts capable to passing those tests be installed in new vehicles.

Further, regardless of the type of performance standards involved, lowering the seat of a used vehicle could not raise any question about recertification. Certification relates to new vehicles exclusively. The only question which lowering the seat would lose under our statute, the National Traffic and Motor Vehicle Safety Act, would be whether lowering the seat would cause equipment installed pursuant to Federal safety standards to no longer be in compliance. Section 108(a)(2)(A) of the Act prohibits manufacturers, distributors, dealers and repair businesses from knowingly rendering inoperative safety equipment. If this prohibition is the concern of Mr. Adams of Volkswagen, perhaps he can clarify for your constituent how Volkswagen believes lowering the seat would violate that prohibition. Mr. Adams does not state that lowering the seat would preclude the belt system from adjusting to fit the range of people specified in the standard.

It may be that Volkswagen's reluctance to lower the seat stems from a concern about products liability. Lowering the seat could very well alter the performance of the Volkswagen automatic belt system.

In an effort to promote further clarification of Volkswagen's position, I am sending a copy of this letter to Mr. Adams. The only further thing I can do is suggest that Mr. Weaver contact Mr. Adams again and obtain his reaction to my letter. Perhaps we can then see what other alterations are available. I hope some adjustment can be made to accommodate Mr. Weaver.

Sincerely,

Joan Claybrook

Enclosure Constituent's Correspondence

cc: Kenneth R. Adams Deputy Washington Representative Volkswagen of America, Inc. 475 L'Enfant Plaza, S.W. Washington, D.C. 20024

August 2, 1979

The Honorable Joan Claybrook, Administrator National Highway Traffic Safety Administration 400 Seventh Street, S. W. Washington, D. C. 20590

Dear Ms. Claybrook:

Enclosed are copies of a letter from a constituent concerning a problem he is experiencing with his new car seat belts and the corresponding answer from the government relations department of the car manufacturer.

As evidenced from the letter from the car manufacturer, the Federal Government requires that the car be equipped with seat belts that will fit more than 90% of the population. What is to be done for those other 10% who must try to cope with the regulations on seat belts, but do not want to do anything violative of the law and are unable to get any relief from the car manufacturer?

I would appreciate it if you could give me some information that would be helpful to Mr. Weaver. If you know of any special waiver to the regulations that can be granted on an individual basis such as this, it would be very helpful in assuring that Mr. Weaver is given full satisfaction while still obeying the regulations under which he must operate his car.

Thank you in advance for any assistance you may be able to give in this matter. Your full attention to this problem is respectfully requested.

Sincerely,

David L. Boren United States Senator

Enclosures

July 3, 1979

The Honorable David Boren United States Senate Washington, D.C. 20510

Dear Senator Boren:

Thank you for the inquiry from Mr. Thomas J. Weaver regarding the seat belt system in his Volkswagen 4-door Rabbit-L Diesel vehicle.

I have personally checked with our safety engineers regarding the possibility of modifying Mr. Weaver's seat belt system. The system in Mr. Weaver's Rabbit is 100 percent in compliance with Federal standards for occupant crash protection. In fact, it is the Federal government that requires our seat belts to fit more than 90 percent of the American population.

To comply with these Federal standards, Volkswagen employs an integrated passive belt system in the model that Mr. Weaver owns. The occupant is protected by a combination of design features in the car which include the belt itself, a kneebar, the wheel and a special type of seat. If we were to lower the seat, the performance characteristics of our belt system would change, and it would be necessary to begin the entire testing process for certification again.

Therefore, because of the requirements of Federal laws in this area, we are unable to recommend an adjustment in the height of the seat.

If I can be of any further assistance, please don't hesitate to contact me.

Sincerely,

Kenneth R. Adams Deputy Washington Representative

KRA:hk

025 N. Sherry Avenue Norman, Oklahoma 73069 21 April 1979

The Honorable David Boren United States Senate Washington, D. C.

Dear Senator:

I recently purchased a Volkswagon 4-door Rabbit-L diesel automobile. The seat belts in the front seats are attached to the front doors so the seat belts "put themselves on" as the driver and front seat passenger enter the car. When I am driving the seat belt should come over my left shoulder. Instead it comes across my left arm. In an emergency situation where the seat belt mechanism became locked, this would severly restrict the use of my left arm in turning the steering wheel and could cause an accident.

Due to the large backlog of orders, I was not able to test drive this model car before purchase. Soon after delivery I notified the local dealer, Thunderbird Imports, of this problem and requested the front seats be lowered which would eliminate the problem. I was told the local dealer could not modify any of the safety system without the authorization of at least the regional office.

On 3 April 1979 I sent letters to the San Antonio Regional Office and the national headquarters in Englewood Cliffs, New Jersey, stating the problem and requesting that the front seats be lowered. On 19 April a representative from the San Antonio Regional Office, Jack Atwood, observed the situation but stated the car was made to specifications and no modifications could be made. The seat belts fit him properly--but he doesn't drive my car! Mr. Atwood passed the buck stating that only the U.S. Government could authorize changes to an approved automobile design. Today I recieved a letter from the San Antonio Regional Office confirming they would do nothing to correct this safety hazard.

Is there anything you can do have them lower the front seats of my car? I realize this is a lot of difficulty to make my car safer to drive. In their current position, I feel the seat belts are more likely to contribute to accidents and injury than to prevent them.

Sincerely,

Thomas J. Weaver

Copy to: Thunderbird Imports

ID: nht87-1.62

TYPE: INTERPRETATION-NHTSA

DATE: 04/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: C. D. Black

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. C. D. Black Jaguar Cars, Inc. 600 Willow Tree Road Leonia, New Jersey 07605

Dear Ms. Black:

This responds to your December 11, 1986 letter to me concerning Federal Motor Vehicle Safety Standard No. 206, Door Locks and Door Retention Components. I apologize for the delay in responding. You ask whether we interpret Standard No. 206 to permit inst allation of a particular type of door locking system which you referred to as a "child safety lock." The answer to your question is yes.

You explain that a "child safety lock" is a special locking system installed in addition to the locking system mandated by Standard No. 206. You state that the required locking system (hereinafter referred to as "the primary locking system") is operated by a vertical plunger located in the door top trim roll (window sill). The child safety lock (which I will refer to as a "secondary locking system") consists of a lever that is located in the shut face of the rear doors which can only be reached when the door is open. When the lever is set in the "active" position, it renders the inside rear door handle incapable of opening the door. The outside door handle is operative and can be used to open the door.

The requirements of Standard No. 206 for door locks are as follows:

S4.1.3 Door locks. Each door shall be equipped with a locking mechanism with an operating means in the interior of the vehicle.

S4.1.3.1 Side front door locks. When the locking mechanism is engaged, the outside door handle or other outside latch release control shall be inoperative.

S4.1.3.2 Side rear door locks. In passenger cars and multipurpose passenger vehicles, when the locking mechanism is engaged both the outside and inside door handles or other latch release controls shall be inoperative.

As you know, the standard was amended on April 27, 1968, to include the door lock requirements described above. An objective of the amendment was to ensure retention of occupants within the vehicle during and subsequent to an impact by reducing inadverte nt door openings due to impact upon or movement of inside or outside door handles. Other objectives were to protect against children opening rear door handles, and to afford occupants of the rear of a vehicle a method of unlocking the rear door from insi de the vehicle (i.e., a reasonable means of escape) in the postcrash phase of an accident.

Your inquiry raises the issue of the permissibility under S4.1.3 through S4.1.3.2 for negating the capability of the interior latch release controls (door handles) to operate the door latches when the door locking mechanism is disengaged. As explained be low, based on our review of the purpose of Standard No. 206 and past agency interpretations of the standard, we conclude that the standard prohibits only secondary locking systems which interfere with the engagement of the primary locking system. Since y our child locking systems do not interfere with the manner in which the primary locking system engages, their installation on the vehicles you manufacture is permitted.

The answer to your question about the child locking systems is dependent on whether the systems interfere with an aspect of performance required by Standard No. 206. We have determined that the answer is no, because the requirements of S4.1.3.1 and S4.1. 3.2 are written in terms of what must occur when the primary system is engaged and impose no requirements regarding the effects of disengaging the system. Thus, the aspect of performance required by S4.1.3 for the interior operating means for the door lo cks is that it be capable only of engaging the required door locking mechanisms. The aspect of performance required by S4.1.3.2 for door locks on the rear doors is that the inside and outside door handles be inoperative when the locking mechanism is enga ged. Since we have determined that S4.1.3.1 and S4.1.3.2 do not address the effects of disengaging the required door locks--i.e., S4.1.3.2 does not require that the inside rear door handles be operative (capable of releasing the door latch) when the requ ired locking system is disengaged--a child locking system may be provided on a vehicle if it does not negate the capability of the door lock plunger (the operating means) to engage the door locks.

While the agency stated in its April 1968 notice amending Standard No. 206 that one purpose of requiring an interior means of operating door locks was to allow a reasonable means of escape for vehicle occupants, the agency did not go further in facilitat ing escape by also including a provision to require in all circumstances that door handles be operative when the primary locking systems are disengaged. Since the agency could easily have included such a provision to address this reverse situation, but d id not do so, the implication is that the agency did not intend to impose requirements regarding that situation. In fact, the notice included a contemporaneous interpretation that the standard permits a secondary locking device which rendered the inside rear door handle inoperative even when the primary locking mechanism was disengaged. This affirms that NHTSA did not even intend to impose a requirement that the handles always be operative when the primary locking mechanism is disengaged.

In determining that the performance requirements of Standard No. 206 address only the effects of engaging the required door locks, we noted that the purpose of the standard is to "minimize the likelihood of occupants being thrown from the vehicle as a re sult of impact." Throughout the rulemaking history of the standard, NHTSA has limited application of the standard's performance requirements only to doors that are provided for the purpose of retaining the driver and passengers in Collisions. Because the standard is narrowly focused on occupant retention in a vehicle and specifies no performance requirements for occupant egress, we concluded that there is no requirement in the standard that prohibits a device which negates the capability of the inside o perating means for the door locks to disengage the locks, provided that the device does not interfere with the engagement of the required door locking system.

Another issue related to your inquiry is whether the location of the operating means for the child locks is regulated by Standard No. 206. We have determined that the answer is no. Secondary locking mechanisms discussed in the final rule adopting the doo r lock requirements and in past agency letters all were designed so that the operating means for the secondary mechanism was inaccessible when the door was closed. In none of those documents did the agency take exception to that location of the operating means, much less suggest that those means, like the means for the primary locking mechanism, must be located in the vehicle's interior.

This letter interprets Standard No. 206 in a manner that clarifies past agency statements concerning issues raised by secondary locking systems such as "child safety locks." To the extent that the statements contained herein conflict with interpretations made by NHTSA in the past, the previous interpretations are overruled.

Please contact my office if you have further questions.

Sincerely,

Erika Z. Jones Chief Counsel

December 11, 1986

Ms. Erika Z. Jones Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street SW Washington, D.C. 20590

Dear Ms. Jones:

We request your interpretation of the requirements of FMVSS 206 as it relates to child safety lock systems currently fitted to Jaguar sedans destined for U.K. and European markets and which we would like to fit to USA cars.

The Jaguar rear door primary locking system is activated or deactivated from a vertical plunger situated in the door top trim roll. It functions in the manner described in FMVSS 206, paragraph 4.1.3.2., (also pages 12 and 13 of the Jaguar drivers handboo k attached.)

To operate the additional child safety lock (special locking system), the door must first be opened and a small lever, situated in the door shut-face, activated. The door, when subsequently closed, cannot then be unlocked or opened from inside the vehicl e regardless of the position of the primary locking system vertical plunger. However, the door can be opened using the outside handle. The child safety lock can be deactivated only by opening the rear door using the outside door handle and then reversing the position of the lever in the door shut-face.

However, the preamble to FMVSS 206 amendment of 27 April 1968 (33 FR 6465) contains a phrase that we believe could be interpreted to preclude fitment of these locks for USA cars:

"At the same time, by affording occupants of the rear of a vehicle a method of unlocking the rear door from inside the vehicle, a reasonable means of escape is provided for such occupants in the post crash phase of an accident." (Emphasis added).

We would like a clear statement that such a system as described above would not contravene the requirements of FMVSS 206.

On behalf of Jaguar Cars Yours sincerely,

C.D. Black

Manager - Engineering CDB:as Legislation & Compliance

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