Interpretation ID: Cardinali1

Mr. Alex Cardinali

Office of Government Affairs

Nissan North America, Inc.

196 Van Buren Street, Suite 450

Herndon, VA 20170

Dear Mr. Cardinali:

This responds to your e-mail requesting an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing Materials. Specifically, you asked which version of the Society of Automotive Engineers (SAE) Recommended Practice J941, Motor Vehicle Drivers Eye Locations, is applicable for compliance purposes. As you correctly observed, S3.2(c) of FMVSS No. 205 incorporates by reference SAE J100 (rev. June 1995), Class A Vehicle Glazing Shade Bands, which in turn subreferences SAE J941 without mentioning any specific version. Accordingly, you stated that you are unsure whether you should use the latest version of SAE J941 (rev. September 2002) or the earlier version (rev. June 1997). As explained below, because a specific revision of that SAE standard is not cited or otherwise discussed in the rulemaking, the applicable version of SAE J941 for compliance purposes would be the version in effect at the time the comment period closed on the notice of proposed rulemaking (NPRM) proposing to incorporate SAE J100 into the standard (i.e., rev. June 1997).

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. One of those standards is FMVSS No. 205, which specifies performance requirements for various types of glazing. We further note that under 49 CFR 571.5(a), our regulations provide, in pertinent part, For materials subject to change, only the specific version approved by the Director of the Federal Register and specified in the standard are incorporated. Once approved, copies of such materials are kept on file by the Office of the Federal Register.

In the present case, the agency published an NPRM in the Federal Register on August 4, 1999, that proposed to upgrade Standard No. 205, one aspect of which involved incorporation by reference of SAE J100 (rev. June 1995)(see 64 FR 42330, 42335). The comment period on that NPRM lasted until October 4, 1999. Subsequently, a final rule was published in the Federal

Register on July 25, 2003, which included the amendment incorporating SAE J100 (rev. June 1995) into the standard (see 68 FR 43964, 43972). Again, SAE J100 subreferences SAE J941 without a specific revision date. No public comments were received on this issue.

As you are aware, NHTSA routinely draws upon the technical expertise of SAE and other standards, as appropriate. SAE (a group comprised of technical experts, including ones from industry) develops and maintains a system of standards which are constantly being revised and updated to reflect changing technologies and scientific understanding. We note, however, that compliance with an SAE standard is voluntary, unless the standard is adopted by a government agency. Furthermore, it is our understanding that, in light of that organizations procedures for regular updates of its standards, SAE decided not to cite specific revision dates for subreferenced standards, instead intending the most current revised version to be used.

In contrast, NHTSA adopts binding regulatory requirements, which may include all or parts of standards incorporated by reference from other sources. The agency adopts requirements only after an opportunity for public notice and comment. Consistent with the requirement of 49 CFR 571.5(a) mentioned above, the agency cites the specific version of the materials to be incorporated by reference into our standards in order to provide certainty to regulated parties regarding applicable regulatory requirements. Otherwise, subsequent revisions to SAE standards (or similar standards) would impermissibly allow outside organizations to modify our FMVSSs through changes in their documents.

With that said, we now turn to the specific issue raised in your letter. In the case where a subreferenced SAE standard does not identify a specific, relevant version, we conclude that the correct version for compliance purposes would be the most recent version of that standard in effect at the close of the comment period of the NPRM proposing the incorporation by reference. Our reasoning is as follows. In light of the ambiguity surrounding which version of a subreferenced SAE standard is to be used, it is logical to expect the agency and the public to have consulted the latest version of the subreferenced standard as they respectively develop and comment on the NPRM. This principle recognizes both SAEs intention for stakeholders to use the most recent version of its standards, and the agencys need to avoid incorporation of any subsequent version which would not have been available to receive the benefit of public comment (e.g., one adopted in the time period between publication of the NPRM and the final rule, or thereafter). We note, however, that if public commenters did raise the issue of the revision date of any standard incorporated by reference (e.g., either an earlier version, or a soon-to-be-published version available in draft), the agency could choose a different version in the final rule, although it would likely do so explicitly.

In light of the above, the June 1997 revision of SAE J941 is the applicable version for purposes of FMVSS No. 205, because it was the one in effect at the end of the comment period for the proposal to incorporate SAE J100 by reference into that standard.

As a related matter, we note that in analyzing the issues presented in your e-mail, we discovered an inconsistency in the version of SAE J100 incorporated by reference under S3.2(c) (i.e., rev. June 1995) and the version recited in the requirements of S5.3.1 (i.e., rev. November 1999). We understand that these two versions are substantively identical, with the latter version simply being a reaffirmation of the earlier standard pursuant to SAEs periodic review process. The agency plans to issue a correcting amendment in the near future to resolve this discrepancy.

If you have any further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Anthony M. Cooke

Chief Counsel

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