Interpretation ID: nht72-2.35

DATE: 02/15/72

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: D. M. Schwentker, Esq. -- Busby, Rivkin, Sherman and Levy

TITLE: FMVSS INTERPRETATION

TEXT: In your letter of November 30, 1971, you ask if you may assume certain statements to be true. My reply lists your statements and discusses each separately.

"1. 571.5(a) applies to SAE Standards and Recommended Practices subreferenced by the SAE Standards and Recommended Practices referenced in the Federal Motor Vehicles Safety Standards contained in Part 571 as well as to the primary references.

The Initial Standards incorporate many SAE materials, probably due in large part to the statutory mandate that they be based upon existing standards. The intent of 571.5(a) appears to be to insure that those materials are legitimately incorporated into the Federal requirements, and that materials subject to change are in fact "frozen" as of a day certain, so that the Federal Standards are not subject to attack on grounds of vagueness. J575 is not directly "referred to" in Standard No. 106, but since its inclusion in Standard No. 108 is required to complete the structure of the Standard, I do not regard a direct reference as necessary to bring it within the ambit of 571.5(a). The SAE Standards that are part of Standard No. 108 "refer" to J575 and this is sufficient.

"2. [Materials] . . . 'in effect on the date of adoption of this Part . . . means [materials] . . . in effect on the date of publication in the Federal Register of the Federal Motor Vehicle Safety Standard or regulation in which they are referenced . . .'

The answer is obviously "yes" with reference to the Initial Standards; February 3, 1967, was both the "date of adoption of this Part" as well as "the date of publication in the Federal Register of the Federal Motor Vehicle Safety Standard or regulation in which they are referenced."

The answer is "no" with respect to Standards published after February 3, 1967. Section 571.5(a) says that materials subject to change incorporated in any Standard published subsequent to February 3, 1967, are those in effect on February 3, 1967, unless the reference to them provides otherwise.

"3. '. . . in effect . . .' with respect to SAE Standards and Recommended Practices means formally adopted by SAE although not necessarily printed in the SAE Handbook.

In the strict legal sense, an SAE Standard is never "in effect" since adherence to it is voluntary. One revision supersedes another but cannot be said legally to "revoke" it, ending its "effectivity."

SAE Standards do not have effective dates. They bear an identifying month and year indicating when the latest revision was approved by the appropriate SAE approval body. Thus, J575d, November 1966, means that the (Illegible Word) was approved by the SAE lighting committee in November 1966. J575d was then printed and circulated to SAE members in January 1967, subsequently appearing in the 1968 Handbook.

J575d then was "in effect" on February 3, 1967 end before appearing in the 1968 Handbook, whether considered as becoming effective upon approval by the SAE lighting committee or upon publication and distribution to SAE members.

"4. SAE J575d is the revision subreferenced in Table III of Federal Motor Vehicle Safety Standard No. 108 (32 F.R. 18033) under passenger cars, tail lamps (effective January 1, 1969).

Yes. Standard No. 108 was amended to adopt Table III in December 1967, based upon a proposal published on February 3, 1967. The agency did not manifest its intent, in the SPRM or any correspondence that I have been able to discover, that the referenced and subreferenced SAE Standards in the proposed standard were those appearing in the 1967 Handbook (e.g. J575c). It is a general SAE policy, however, as expressed in its Handbooks, that where revision letters are not used, the assumption is that references to Standards will designate the latest revision. Since J575d had been published and circulated in January 1967, it may be reviewed as incorporated by reference into those SAE materials referencing J575 that were part of the NPRM of February 3, 1967.

I hope this answers your questions.