Interpretation ID: 1982-3.15

TYPE: INTERPRETATION-NHTSA

DATE: 10/28/82

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Department of Transportation; State of Hawaii

TITLE: FMVSS INTERPRETATION

ATTACHMT: ATTACHED TO LETTER DATED 04/13/89 FROM ERIKA Z. JONES -- NHTSA TO MABEL Y. BULLOCK, REDBOOK A33, STANDARD 205, VSA 103 (D), VSA SECTION 108 (A) (2) (A); LETTER FROM MABLE Y. BULLOCK AND LACY H. THORNBBURG TO SUSAN SCHRUTH -- NHTSA RE WINDOW TINTING, FEDERAL PRE-EMPTION OF STATE REGULATIONS, OCC 2142; NORTH CAROLINA STATUTE REGULATING WINDOW TINTING; LETTER DATED 12/18/87 FROM LACY H. THRONBURG AND MABEL Y. BULLOCK, SUBJECT MOTOR VEHICLES REGULATIONS OF DARK SHADED WINDOWS; PREEMPTION; LETTER DATED 05/06/88 FROM DAIRL BRAGG TO WILLIAM S. HIATT; LETTER DATED 04/04/85 FROM JEFFREY R. MILLER TO ARMOND CARDARELLI; REGULATIONS DATED 07/01/85 EST, FEDERAL AUTO SAFETY LAWS AND MOTOR VEHICLE WINDOW TINTING

TEXT:

Mr. Lawrence T. Hirohata Vehicle Equipment Safety Specialist Department of Transportation State of Hawaii 79 South Himitz Highway Honolulu, Hawaii 96813

Dear Mr. Hirohata:

This responds to your recent letter asking whether persons who apply tinted films to motor vehicle glazing would be considered motor vehicle distributors, dealers or repair businesses and thus be prohibited by section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act from rendering inoperative components that have been installed on vehicles pursuant to Federal Motor Vehicle Safety Standards.

The answer to your question is yes. The persons you described fall within classes of persons listed in section 108(a)(2)(A) and the application of tinted film to motor vehicle glazing can constitute "rendering inoperative." Section 108(a)(2)(A) of the Safety Act provides that:

"No manufacturer, distributor, dealer, or motor vehicle repair 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,.... For purposes of this paragraph, the term "motor vehicle repair business" means any person who holds himself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation."

Without knowing more about the film appliers you described, we find it difficult to determine the number of classes into which they would fall. However, the film-appliers are clearly considered to be dealers. This conclusion is based on the definitions of "motor vehicle equipment" (section 102(4)), and "dealer" (section 102(7)). The tinted film is an item of motor vehicle equipment since it is an "accessory, or addition to the motor vehicle." Therefore, any person who sells the tinted film primarily to persons, typically vehicle owners, for purposes other than resale is a dealer. The status of such a person does not change because he or she also applies the film to motor vehicle glazing.

The film appliers you described may also be motor vehicle repair businesses. You stated that the film appliers argue that they are not repair businesses. Implicit in their argument is a narrow interpretation of the term "repair." We don't believe that such an interpretation was intended by Congress since it would frustrate Congress' stated purpose in attempting to ensure that safety equipment remains operative over the life of the vehicle. The only type of person mentioned in the legislative history as being permitted to render safety equipment inoperative is the owner of the Vehicle on which the safety equipment is installed. In addition, we believe that the references in the history to service, maintenance and replacement further suggest that a narrow interpretation was not intended.

The agency has consistently stated in its past letters of interpretation that the installation of tinted films on vehicle glazing constitutes rendering inoperative if the installation destroys the glazing's compliance with the light transmittance requirements of Safety Standard No. 205. The legislative history of section 108(a)(2)(A) provides that "render inoperative" includes permanent removal, disconnection or degradation of the safety performance of any element or design of a vehicle (Conference Report). Therefore, the activity described in your letter definitely falls within the scope of section 108(a)(2)(A).

In conclusion, it is the agency's opinion that businesses which are installing tinted films on motor vehicles and thereby destroying the glazing's compliance with the light transmittance requirements of Safety Standard No. 205 are in violation of section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. As such, the businesses are liable for civil penalties up to $1,000 for each violation.

Our Office of Enforcement is currently investigating the practice of applying tinted film to motor vehicle glazing. Accordingly, we have forwarded a copy of your letter and the advertisement to that office for its action.

Sincerely,

Original Signed By Frank Berndt Chief Counsel

Mr. Frank Berndt Chief Counsel Office of the Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D. C. 20590

Attention: Mr. Hugh Oates

Dear Mr. Berndt:

This is to reiterate my telephone request of August 5, 1982 relating to the federal interpretation of the phrase "motor vehicle repair business" as used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act).

In Hawaii, there are numerous businesses engaged in the trade of applying film or liquid tinting materials to motor vehicle window glass for a fee. All window glass, including those required for driver visibility, are tinted to a shade where under normal sunny condition the occupants or objects inside the vehicle cannot be readily visible from outside the vehicle. The minimum 70% luminous transmittance required for driving visibility as recommended in the American National Standard (ANS) Z26.1 and referenced by the Federal Motor Vehicle Safety Standard (FMVSS) 205 are being rendered inoperative by these businesses.

We believe these businesses may be in violation of the Act. However, the operators of these businesses contend that they are not in the motor vehicle repair business because they do not repair anything mechanical. They perform only superficial facelifting of vehicle exterior.

In your opinion, would you consider these businesses as a motor vehicle repair business within the scope of the Act? Can these businesses also be considered as a distributor or dealer of "motor vehicle equipment" as defined in Section 102(4), (6) and (7) of the Act?

Enclosed is a typical advertisement offering a special for auto glass tinting by a business here in Honolulu. This ad appeared in the August 13th issue of a weekly classified ad.

We would appreciate any legal opinion or assistance you can share with us to effectuate a solution to this monstrous problem.

Thank you for your cooperation.

Sincerely,

LAWRENCE T. HIROHATA Vehicle Equipment Safety Specialist