ID: 1984-3.11

TYPE: INTERPRETATION-NHTSA

DATE: 08/21/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Wayne Ivie -- Manager, Support Section, Motor Vehicle Division Department of Transportation (Oregon)

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of July 27, 1984, to Mr. Frank Turpin, which was forwarded to my office for reply, asking several questions concerning our regulations on certain items of motor vehicle equipment. The following discussions answer your questions.

You have asked first if there are any provisions in Standard No. 108, Lamps, Reflective Devices and Associated Equipment, for or against the use of blue warning lamps on police vehicles, if the lamps are steady burning rather than rotating. You have been unable to answer this question by referrals either to Standard No. 108 or SAE materials. Because the National Traffic and Motor Vehicle Safety Act allows States and municipalities to impose higher standards than the Federal ones for vehicles procured for their own use (15 U.S.C. 1392(d)), the agency has generally deferred to the judgment of governmental bodies in their equipment specifications.

You have not stated whether the blue warning lamps would be supplemental to the vehicle's existing lighting, or replacing some item of the vehicle's original equipment. If the lighting is supplemental (e.g., roof-mounted as are the warning lamps on police vehicles in this area), Standard No. 108 permits it if it does not impair the effectiveness of the lighting equipment that is required by the standard (paragraph S4.1.3). Thus, a roof-mounted lamp, whether steady-burning or rotating, would appear permissible. If, however, the warning lamp was adjacent to a stop lamp or headlamp, or replaced a lamp such as a taillamp, a question of impairment could arise, and the burden would be on a State to demonstrate it had adopted a higher standard of performance.

Your second question asked whether there is a specific statement in our regulations or elsewhere which prohibits the attaching of materials to vehicle windshields and windows. The following discussion explains the effect of Standard No. 205, Glazing Materials, and section 108(a)(2) (A) of the National Traffic and Motor Vehicle Safety Act (the Act) on tinting films and other materials placed on windshields and other windows.

Pursuant to the Act, we have promulgated Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, which specifies performance and location requirements for glazing used in vehicles. These requirements include specifications for minimum levels of light transmittance (70 percent in areas requisite for driving visibility, which includes all windows in passenger cars) and abrasion resistance. This specification for light transmittance precludes darkly-tinted windows in new automobiles.

Tinting and other films are not glazing materials themselves and would not have to comply with Standard No. 205. However, installation of such films on new motor vehicles would be prohibited if the vehicle glazing no longer complied with the light transmittance or abrasion requirements of the standard.

A vehicle manufacturer or a dealer may place the film on glazing in a new vehicle prior to sale of the vehicle only if that manufacturer or dealer is able to certify that the glazing continues to be in compliance with the requirements of Standard No. 205. Purchasers of a new vehicle may alter the vehicle as they please, so long as they adhere to all State requirements.

However, vehicle owners may not go to a commercial establishment to have darkly tinted films installed for them. Section 108(a)(2)(A) of the Act provides that no manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. Thus, none of those persons may knowingly install a film on a vehicle for its owner if that act would render inoperative the light transmittance or abrasion resistance of the vehicle glazing. Violation of this section can result in Federal civil penalties up to $ 1,000 for each violation.

You mentioned that you have recently received an inquiry from the U.S. Air Force concerning the placement of identification decals on a vehicle. We have received a similar inquiry and I am enclosing a copy of our response.

If you have any further questions, please let me know.

ENC.

Department of Transportation MOTOR VEHICLES DIVISION

July 27, 1984

NHTSA

Attention: Francis J. Turpin

Dear Frank:

We would appreciate your help on some questions we have concerning federal regulations/requirements on certain vehicle equipment items.

1. Are there any provisions for or against use of blue warning lamps on police vehicles, if the lamps are "steady burning" -- non flashing or rotating? We were unable to find any information regarding this in FMVSS 108 or in the SAE Standards covering vehicle lighting.

2. Is there a specific "statement" in the federal regulations or elsewhere that prohibits attaching material to vehicle windshields/windows? Presently it is not allowed by our state laws, if "the material prohibits of impairs the ability to see into or out of the vehicle." The availability of various window tinting materials and screening causes constant inquiries from law enforcement, manufacturing companies, repair shops, and individuals regarding this law. Also, we have recently received inquiries from the U. S. Air Force on placing their Identification Decals on windshields of Air Force personnels' private vehicles.

We respond to the window glazing inquiries with information from FMVSS 205 and ANSI Z26. (Ie, the 70% light transmittance requirements.) Also, we mention Section 108 (2) (A) of the National Traffic and Motor Vehicle Safety Act of 1966, concerning rendering inoperative of vehicle equipment. But, we would like to also be able to provide a definite federal prohibition, with possible penalties, etc.

Thank you for any assistance you can give us.

Wayne Ivie Manager, Support Section

ID: 1984-3.12

TYPE: INTERPRETATION-NHTSA

DATE: 08/21/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: T.M. Johnson, Jr. -- Dunlop Tire and Rubber Corporation

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. T. M. Johnson, Jr. Dunlop Tire and Rubber Corporation Box 1109 Buffalo, N.Y. 14240-1109

This responds to your recent letter to Mr. Stephen Kratzke of my staff, requesting an interpretation of the requirements of Standard No. 119, New Pneumatic Tires for Motor Vehicles Other Than Passenger Cars. Specifically, you asked for an interpretation of the requirements of section S5.1 of Standard No. 119, which requires that a listing of the rims which may be used with each tire produced by a manufacturer be provided to the public. That section gives manufacturers the option of using the data provided for the tire size and the corresponding rims published in certain standardization organization yearbooks or listing the appropriate information "in a document furnished to dealers of the manufacturer's tires, to any person upon request, and in duplicate to NHTSA." You enclosed a copy of a paper label you propose to affix to a 15-inch motorcycle tire which is not currently listed in any of the standardization organization publications, and asked if this would satisfy the requirement that the information be contained in a document furnished to dealers and to any person upon request. The proposed paper label would satisfy the requirements of section S5.1 of the standard.

In the past, manufacturers electing to list the appropriate information for the tire size have sent bulletins to their dealers and distributors with the necessary information. The reason for requiring this wide dissemination of the appropriate information when a tire size is not listed in a standardization organization publication is to ensure that the tire will be mounted only on appropriate rims and that the tire will be mounted only on vehicles where its load-carrying capacity will be adequate. The paper label you furnished along with your letter shows the appropriate dimensional and load-carrying data for the tire and rims, so it appears to serve the purposes of section S5.1. Further, as you noted in your letter, the paper label should reach outlets beyond your distributor network, whereas a service bulletin might not reach those outlets. Accordingly, I conclude that a paper label affixed to a tire, which lists the appropriate dimensional and loading information for the tire and suitable rims, would satisfy the requirement that the appropriate information be listed in a document furnished to dealers of the manufacturer's tires.

July, 23 1984

Stephen Kratzke, Esq. Office of Chief Counsel 5219 407th Street SW Washington, DC 20590

RE: REQUEST FOR INTERPRETATION MVSS119; S5.1, S5.1(a)

Dear Mr. Kratzke:

This confirms our prior conversations regarding Dunlop's intention to market a size MV85-15, load range C, motorcycle tire. This size is not currently listed in one of the publications referenced in MVSS119 S5.1(b). Enclosed is a copy of the tread label we hope to affix to every such tire and which contains the information we will supply to NHTSA and the public.

Paragraph S5.1(a) states "listed in a document furnished to dealers of the manufacturer's tires, to any person upon request and in duplicate to" NHTSA. Rather than issuing a bulletin that may not reach actual points of sale (motorcycle accessory shops) beyond our Distributor network, we propose that the information be printed on the tire's tread label. Whoever fits the tire to a rim and motorcycle will have the required information readily available. Upon request, the label may be detached and provided to the customer.

Therefore, we are at this time requesting your office to provide an interpretation of the Standard with respect to inclusion of meaning of "document".

Your expeditious response to this proposal will be much appreciated, since we will begin distribution in August.

Very truly yours,

DUNLOP TIRE & RUBBER CORPORATION

T. M. Johnson, Jr., Tire Performance Manager

ID: 1984-3.13

TYPE: INTERPRETATION-NHTSA

DATE: 08/23/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: P. Winkler-Doman -- Office of the General Counsel, Ford Motor Co.

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. P. Winkler-Doman Office of the General Counsel Ford Motor Company The American Rd. Dearborn, MI 48121

Dear Ms. Winkler-Doman: This responds to your July 19, l984, letter regarding the timing of petitions to amend average fuel economy standards. As you know, the agency has taken the position that Ford's petition to amend the l984 and l985 light truck average fuel economy standards was not timely filed with regard to the 1984 model year.

A model year is presumed to begin sometime in the autumn of the preceding calendar year (see Center for Auto Safety v. NHTSA, 710 F.2d 842 (D.C. Cir. l983)). The Ford petition was filed on November 21, l983, and amended on January 20, l984. Since model year l984 began in the fall of l983, it is clear that the l984 light truck standards could not have been amended in response to the Ford petition prior to the start of that model year.

Section 502(b) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2002(b) requires the Secretary of Transportation to issue average fuel economy standards for light trucks for each model year beginning with l979. These standards must be set at the "maximum feasible average fuel economy level" and must be prescribed at least "18 months prior to the beginning of" the model year to which they apply. 1d.

Section 502(f)(1) of the Act provides that the "Secretary may, from time to time, amend" any light truck fuel economy standard "as long as such standard, as amended, meets the requirements" of section 502(b). An amendment which makes standards more stringent must be promulgated "at least l8 months prior to the beginning of the model year to which such amendment will apply." See section 502(f)(2), 15 U.S.C. 2002(f)(2). With regard to any timing requirements applicable to amendments which make standards less stringent, section 502(f) is not explicit but could be interpreted in two ways. The language in paragraph ( ) (1) authorizing amendments "from time to time" could be interpreted to permit amendments at any time. Alternatively, the language in that paragraph requiring that amendments to standards must comply with requirements applicable to their original enactment could be interpreted to impose the l8 month rule, one of the requirements of section 502(b), on amendments to reduce standards. Under the letter approach, all amendments would have to be issued at least l8 months prior to the start of the effected model year.

Where a statutory provision is ambiguous on its face, rules of statutory construction dictate that the legislative history of the provision must be considered. See Sutherland, "Statutory Construction," 4th Ed., section 48.01. An Act's Conference Report has been considered the "most persuasive evidence of congressional intent" in this regard. Denby v. Schwelker, 671 F.2d 507, 510 (D.C. Cir. l981). The Conference Report on th Energy Policy and Conservation Act (the statute which added the fuel economy provisions to the Motor Vehicle Information and Cost Savings Act) contains the following discussion:

Average fuel economy standards prescribed by the ST (Secretary of Transportation) for passenger automobiles in model years after l980, for non-passenger automobiles, and for passenger automobiles manufactured by manufacturers of fewer than 10,000 passenger automobiles may be amended from time to time as long as each such amendment satisfies the l8 month rule-i.e., any amendment which has the effect of making an average fuel economy standard more stringent must be promulgated at least l8 months prior to the beginning of the model year to which such amendment will apply. An amendment which has the effect of making an average fuel economy standard less stringent can be promulgated at any time prior to the beginning of the model year in question.

See Sen. Rep. 94-516, 94th Cong., lst Sess. (1979) at 157. (Emphasis added.)

Although this discussion does not expressly prohibit amendments after the start of a model year, the last sentence certainly implies that result. If no limit on the timing of relaxatory amendments had been intended, The underlined sentence would have been ended after the words "...promulgated at any time.." The agency believes that Congress intended to provide certainty and finality for all parties concerned with regard to the levels of standards, to permit planning by the manufacturers and the agency through cutting off amendments once a model year has begun.

Ford has argued that a failure to permit amendments to fuel economy standards after the start of a model year places manufacturers in a difficult position, since unanticipated sales trends during the model year might impair its ability to comply. However, the agency is also concerned that amendments made after production has begun have some characteristics of ex postfacto law. We believe that Congress intended standards to be established before production begins, to encourage the achievement of particular fuel economy levels rather than simply rectifying past conduct. Chrysler Corporation has expressed similar concerns in its comments in our pending light truck rulemaking, noting that late changes in standards levels could adversely effect manufacturers who planned to meet the original levels. Therefore, we must reaffirm our previous position that petitions to amend fuel economy standards must be submitted in time to permit necessary rulemaking to be completed prior to the start of the model year.

Ford has also requested that the agency specify the precise data by which petitions to amend fuel economy standards must be filed. As noted above, the single court to address the issue has stated only that a given model year begins in the fall of the preceding calendar year (e.g., fall l984 is the beginning of the l985 model year). In its final rule establishing fuel economy reporting requirements, the agency took the position that, in the absence of my single "annual production period," the model year would be deemed to coincide with the calendar year, e.g., the l985 model year would begin January l, l985. See l9 U.S.C. 2001 (12) and 42 FR 62374 (December 12, l977). A further complicating issue is the time necessary to conduct a rulemaking proceeding. Since any amendments to standards must be promulgated prior to the start of the model year, petitions must be filed in time to permit the agency to complete a rulemaking proceeding on the petition prior to the start of the model year. The time necessary for such a proceeding will vary greatly depending on the complexity and controversiality of the issues involved. A proceeding would involve agency analysis of the petition, preparation and publication of the necessary analysis of comments, and preparation and publication of the documentation necessary to accompany the final decision. Such a proceeding could not in any case be completed in less than 6 months. The various uncertainties involved make it impossible for the agency to specify a precise date after which petitions will not be accepted. However, it is clear that the Ford petition, which was filed in November of the preceding calendar year, was not timely. Petitions regarding a particular model year's standards should be submitted no later than the early part of the preceding calendar year, and preferrably before that time.

If you have further questions on this matter, please contact us. Sincerely, Frank Berndt, Chief Counsel

ID: 1984-3.14

TYPE: INTERPRETATION-NHTSA

DATE: 08/27/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Cepcor; Inc.

TITLE: FMVSR INTERPRETATION

TEXT:

Mr. Carl Tolf President Cepcor, Inc. P.O. Box 988 St. Charles IL 60174

Dear Mr. Tolf:

This responds to your letter of July 18, 1984, asking about the applicability of Federal motor vehicle safety standards to a type of load carrier you are considering manufacturing, called "BakPak." Materials provided with your letter indicate that the device is a container which is attached to a vehicle by means of a tow bar. When attached to a vehicle, the device becomes an integral part of the vehicle in the sense that there are no road wheels, and thus it is not a trailer.

By way of background information, the agency does not grant approvals of motor vehicles or motor vehicle equipment. The National Traffic and Motor Vehicle Safety Act places the responsibility on the manufacturer to ensure that its vehicles or equipment comply with applicable requirements. A manufacturer then certifies that its vehicles or equipment comply with applicable requirements. The following represents our opinion based on the information provided in your letter and accompanying materials.

There are no Federal motor vehicle safety standards applicable to a device such as "BakPak." However, the defect provisions of the National Traffic and Motor Vehicle Safety Act are applicable even in the absence of an applicable safety standard. Manufacturers of motor vehicles and motor vehicle equipment are responsible generally that vehicles and equipment they manufacture are free from safety-related defects and can perform their intended function safely. Should a safety-related defect be discovered in your device, whether by the agency or by yourself, you as the manufacturer would be required under Sections 151 et seq. of the Act to notify owners and provide a remedy free of charge. I would also recommend that you check whether there are any State laws applicab1e to your device.

Sincerely,

Frank Berndt Chief Counsel

Wednesday 18 July 1984

Mr. Frank Berndt 202-426-2832 Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D. C. 20590

Enclosed are copies of literature describing the "BakPak", a unique concept in load carriers, which is being successfully manufactured and distributed in the United Kingdom.

Ms. Gayla Barker of your Homewood, Illinois office is sending me copies of Federal Standards 108 and 109.

Mr. Bob Eppes, Motor Vehicle Specialist, of your Kansas City office has been very helpful in advising individuals and/or organizations we should contact before manufacturing the "BakPak" in the United States.

Please advise any Motor Vehicle Compliance Standards that pertain to this product and what steps we should take to insure that our product is in compliance.

Carl Tolf President Enclosures: CT/ct Copy: M. H. Weaver

ID: 1984-3.15

TYPE: INTERPRETATION-NHTSA

DATE: 08/27/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Michelle S. Benjamin -- Siegel; Mandell & Davidson; P.C.

TITLE: FMVSR INTERPRETATION

TEXT:

Michelle S. Benjamin, Esq. Siegel, Mandell & Davidson, P.C. One Whitehall Street New York, N.Y. 10004

This is in reply to your letter of July 13, 1984, seeking an interpretation that certain chassis manufactured abroad may be imported into the United States by your client providing that they will be exported upon their completion. This interpretation is sought pursuant to 15 U.S.C. 1397(b)(5) and 19 C.F.R. 12.80(b)(1)(iv).

You have informed us that your client wishes to import "various chassis" which "will not conform to Federal motor vehicle safety requirements, and they will be labelled or tagged to indicate that they are intended for export." These chassis "will be sold to various special equipment motor vehicle manufacturers in this country who will use the chassis for production of dump trucks, fire engines, and other special purpose vehicles:..(which) will not be manufactured in conformity with Federal motor vehicle safety standards, as the vehicles are to be exported by the American manufacturers or their customers, and we have been advised that at no time will they be sold for use on the roads or highways of the United States." You have enclosed a chart with your letter depicting the products your client wishes to import. They appear to be "incomplete motor vehicles" as defined in 49 CFR Part 568, Vehicles Manufactured in Two or More Stages.

The fact situation that you present has not arisen before, and is not directly covered by the importation regulations. Two provisions of those regulations, however, appear relevant to your client's problem. Subparagraph (iv) of 19 CFR 12.80 (b)(1) permits the temporary importation of noncomplying motor vehicles and equipment items pursuant to the declaration of the importer that "the vehicle or equipment item is intended solely for export, and the vehicle or equipment item, and the outside of the container of the equipment item, if any, bears a label or tag to that effect." Subparagraph (ix) would permit permanent importation pursuant to the declaration that "the vehicle is an 'incomplete vehicle ' as defined in 49 CFR Part 568."

Subparagraph (iv) is not squarely on point as the chassis are not imported "solely" for export, but for sale to final-stage manufacturers for completion of manufacturing operations before export. Subparagraph (ix) is on point, but is intended to cover incomplete vehicles that will be completed for sale in the United States. Accordingly, these vehicles must be labelled as required by 49 CFR 567.5( a) and supplied with the document required by 49 CFR 568.4. These requirements are not relevant for vehicles that will not be operated in the United States, and may be viewed as burdensome to your client. Further, the agency requires compliance of equipment items on imported incomplete vehicles that are themselves the subject of Federal motor vehicle safety standards for equipment, such as tires, glazing, lighting, and brake fluid. Under subparagraph (iv) your client could be considered in violation of the importation regulations if, by chance, a noncomplying vehicle were not exported after its completion. Under subparagraph (ix), however, your client's responsibilities would end at importation (assuming the requirements outlined above were met), and the final-stage manufacturer could affix the label for export as specified in 15 U.S.C. 1397(b)(5) upon completion. Alternatively, if circumstances changed, he could complete the vehicle in a conforming manner, certify it, and sell it in the United States.

Although not squarely on point, the agency would have no objection to importation pursuant to subparagraph (iv) if each declaration (Form HS-7) also contains the notation that the vehicle is being imported solely for completion for export purposes, and provides the name and address of the final-stage manufacturer to whom it will be sold. Alternatively, your client may import the incomplete vehicles pursuant to subparagraph (ix) if it chooses to meet the requirements outlined above.

If you have any further questions, we shall be pleased to answer them.

Sincerely,

Frank Berndt Chief Counsel

July 13, 1984

National Highway Traffic Safety Administration 400 7th Street, S.W. Room 5219 Washington, D.C. 20590

Attention: Mr. Frank Berndt, Chief Counsel

Re: Importation of Chassis Which Do Not Conform To Federal Motor Vehicle Safety Requirements

Dear Mr. Berndt:

We are writing at the suggestion of Mr. Vinson, of your office, who we spoke with approximately three weeks ago concerning our client's contemplated importation into the United States of certain chassis and proper completion of the Department of Transportation National Highway Traffic Safety Administration's HS Form 7. We believe that the facts and pertinent law discussed below require that our client affirm paragraph 4 of the HS Form 7, which provides that a motor vehicle or equipment item offered for importation under 19 CFR S12.80 "is intended solely for export and such merchandise and the outside of its container, if any, are so labeled". HS Form 7, 14, citing 19 CFR S12.80(b)(1)(iv).

By this letter, we hereby request that a binding ruling be issued as to whether paragraph 4 of the HS Form 7 is applicable under the circumstances set forth below.

F A C T S

Our client will purchase and import various chassis from a related company, beginning in August or September, 1984. In their condition as imported, the chassis will not conform to federal motor vehicle safety requirements, and they will be labeled or tagged to indicate that they are intended for export.

The imported chassis will be sold to various special equipment motor vehicle manufacturers in this country who will use the chassis for production of dump trucks, fire engines and other special purpose vehicles, some of which are more specifically outlined in the attached chart. *1 These vehicles will not be manufactured in conformity with federal motor vehicle safety standards, as the vehicles are to be exported by the American manufacturers or their customers, and we have been advised that at no time will they be sold for use on the roads or high-ways of the United States.

A R G U M E N T

THE NON-CONFORMING CHASSIS MAY BE IMPORTED BY VIRTUE OF 15 USC S1397(b)(5), AND THE IMPORTER MAY PROPERLY AFFIRM PARAGRAPH 4 OF THE HS FORM 7 IN SEEKING TO OBTAIN ENTRY OF THE CHASSIS INTO THE UNITED STATES.

As the chassis will be labeled accordingly, are intended to be exported from the United States and, after being sold and manufactured into complete, non-conforming vehicles, the finished vehicles will in fact be exported, it is our opinion that paragraph 4 of the HS Form 7 is the appropriate paragraph to be completed when making the declaration upon entry of the chassis into this country. As demonstrated below, this interpretation is supported by 15 USC S1397, the statute under which the HS

* We have been advised that the attached chart is a representative sampling of the types of vehicles which will be manufactured. Our client has further advised that manufacture of the buses depicted on the chart is not contemplated.

Form 7 is required to be filed to obtain entry of imported nonconforming vehicles or equipment items into the United States.

The National Traffic and Motor Vehicle Safety Act of 1966, P.L. 89-563, 80 Stat. 718 (Sept. 9, 1966), codified at 15 USC S1397 (1982), provides in pertinent part:

(a)(1) No person shall

(A) manufacture for sale, offer for sale, or introduce or deliver for 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 subchapter unless it is in conformity with such standard except as provided in subsection (b) of this section;....

(b)(5) Paragraph (1)(A) of subsection (a) of this section shall not apply in the case of a motor vehicle or item of motor vehicle equipment intended solely for export, and so labeled or tagged on the vehicle or item itself and on the outside of the container, if any, which is exported. Id.

Construed together, these provisions establish that by virtue of S1397(b)(5), importation of non-conforming motor vehicles and motor vehicle equipment which are intended for export and appropriately labeled or tagged to that effect fall squarely outside the general prohibition against manufacture, sale, importation, etc., of non-conforming motor vehicles or motor vehicle equipment set forth in S1397(a)(1)(A). This is because the statute, designed to "provide for a coordinated national safety program and establishment of safety standards for motor vehicles in interstate commerce", (1966 U.S. Code Cong. & Admin. News 2709 (emphasis supplied)) was not intended to have any regulatory effect over the manufacture, sale, importation, etc., of motor vehicles or motor vehicle equipment intended to be exported for use on the roads or highways of other nations.

The domestic orientation of the statute makes clear that the statute was not intended to have extraterritorial effects, but to provide a legislative response to the soaring casualty and injury levels caused by accidents occurring on our nation's highways. See id. at 2709-10. In this connection, it is important to note that prohibition of the manufacture, sale, importation, etc., of non-conforming motor vehicles and motor vehicle equipment which are intended to be exported for use on the roads of other countries would adversely affect the United States auto industry's ability to design and manufacture vehicles to the specifications of companies doing business in such countries having their own laws and vehicle standards. This, in turn, would hamper commercial relations with other nations, and simultaneously deprive a segment of our already declining motor vehicle manufacturing industry of the opportunity to remain productive and competitive in the marketplace. Clearly, the statute does not reasonably admit of such an interpretation which would give rise to results injurious to both our domestic and international interests.

Moreover, the legislative history plainly reveals that the statute was not meant to provide the administrating authorities with the power to usurp the design and manufacturing functions of private industry, which is made clear in the following statement:

The Committee ... recognizes that the broad powers conferred upon the Secretary, while essential to achieve improved traffic safety, could be abused in such a manner as to have serious adverse effects on the automotive manufacturing industry. The Committee is not empowering the Secretary to take over the design and manufacturing functions of private industry. Id. at 2712.

Certainly, were S1397 construed to prohibit the importation of non-conforming vehicles or equipment intended for export as completed non-conforming vehicles, then the government will have achieved the very take-over it sought to avoid, by requiring that all vehicles and equipment imported into the United States and subjected to manufacturing operations in this country must conform to federal motor vehicle safety standards even if the vehicles are never intended to be sold for use in the United States.

In view of the foregoing, it is clear that S1397(b)(5) was intended to lift the prohibition against manufacture, importation, sale, etc., of non-conforming vehicles or motor vehicle equipment intended for export, which are appropriately tagged to that effect, and in fact, exported. Any other interpretation would harm a United States industry already beset with the problems of grave unemployment and declining productivity, and run afoul of the statute's underlying scope and purposes.

C O N C L U S I O N

For these reasons, it is claimed that importation of non-conforming chassis which are: 1) intended to be exported after being manufactured into complete non-conforming vehicles; 2) labeled or tagged to that effect; and 3) in fact, exported, is permitted by virtue of S1397(b)(5). Accordingly, we request that a binding ruling be issued confirming that the importer seeking entry of non-conforming chassis into the United States under the circumstances described in this application may properly affirm paragraph 4 on the Department of Transportation's HS Form 7, indicating that the imported non-conforming merchandise is intended solely for export and such merchandise and the outside of its container, if any, are so labeled.

We would appreciate your acting on the enclosed request for a binding ruling at your earliest opportunity. Naturally, should you require any additional information prior to reaching a decision, kindly contact the undersigned.

Very truly yours, SIEGEL, MANDELL & DAVIDSON, P.C.

Michelle S. Benjamin MSB:ek

ID: 1984-3.16

TYPE: INTERPRETATION-NHTSA

DATE: 08/28/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHSTA

TO: Utilimaster Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your June 29, 1984, letter to the National Highway Traffic Safety Administration concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 207, Seating Systems, FMVSS No. 210, Seat Belt Assembly Anchorages, and FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment.

According to your letter, your company manufactures parcel delivery vans, step vans, and cargo trailers. One of your customers requested the installation of side-facing seats in the cargo area of the vehicle, and you asked whether FMVSS No. 207 and FMVSS No. 210 apply to these seats. As explained below, Standard No. 207 specifies no requirements for side-facing seats unless they have a hinged or folding back. Standard No. 210 does apply to these seats.

Standard No. 207 specifies performance requirements for seats, their attachment assemblies, and their installation, to minimize the possibility of seat failure resulting from crash forces. This standard is applicable to seats installed in vehicles including vans, but section 4.2 of Standard No. 207 excludes side-facing seats from the general seat strength requirements of the standard. However, there are other requirements in the standard which may apply to side-facing seats. For example, paragraph S4.3 requires a restraining device if the seat has a hinged or folding seat or seat back.

You asked whether side-facing seats in the cargo area are required to meet Standard No. 210. Standard No. 210 exempts side-facing seats from its strength requirements specified in S4.2, but all other requirements of the standard apply to side-facing seats. We strongly recommend that belt anchorages for side-facing seats be of at least equivalent strength to anchorages for forward and rearward facing seats, since the strength specifications are only minimum performance requirements.

You asked what kind of testing is required for side-facing seats to determine compliance with FMVSS No. 207 and FMVSS No. 210. As discussed above, side-facing seats are excluded from the performance requirements of Standard No. 207. Regarding the testing of the seats to FMVSS No. 210, a manufacturer is permitted to use whatever test procedures or method of evaluation he chooses to assure its vehicles are in compliance with this and all Federal motor vehicle safety standards. The legal requirement under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391, et seq.) is that the manufacturer exercise due care to determine that his vehicles will be in compliance with all applicable standards when tested by the agency in accordance with the test procedures specified in those standards. Whether a manufacturer has in fact exercised due care cannot be determined by the agency in advance of the actual events leading to the certification of compliance.

Your last question concerned FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. You stated that Virginia requires additional side marker lights than that required by Standard No. 108, and requested the agency to advise you on whether a state can specify more requirements than the standard. We assume that Virginia's requirement is a general one which applies to vehicles other than those procured for the state's own use.

Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1392(d)) states that:

Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either 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. . . Nothing in the section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.

Pursuant to 15 U.S.C. 1392(d), Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, had been established, effective January 1, 1972, as the Federal standard for lighting devices both as original and replacement equipment on motor vehicles.

You indicated in the attachment to your letter that the vehicles for which Virginia is requiring the additional side marker lamps are less than 30 feet in overall length. Section S4.1.1.3 of Standard No. 108 specifies that "Intermediate side marker devices are not required on vehicles less than 30 feet in overall length." Since the State standard prescribes mounting of side marking lights other than that required by the Federal standard, the State standard is preempted by the National Traffic and Motor Vehicle Safety Act.

Your final question asked whether there are any States other than Virginia that have different requirements than FMVSS No. 108. In general, under Section 103(d) of the Safety Act States are prohibited from imposing safety standards applicable to the same aspect of performance governed by FMVSS No. 108. The limited exception in @103(d) allows States to promulgate requirements applicable to motor vehicles or motor vehicle equipment procured for the State's own use which impose a higher standard of performance than the Federal standard. States may also regulate aspects of performance of motor vehicles or motor vehicle equipment which are not governed by a Federal Motor Vehicle Safety Standard. For example, there is no preemption of a State's right to specify requirements for lighting equipment, such as foglamps, not currently included in Standard No. 108.

UTILIMASTER

June 29, 1984

Frank Berndt National Highway Traffic Safety Administration

Dear Mr. Berndt: Utilimaster is a commercial truck manufacturer of parcel delivery vans, step vans, and cargo trailers and we have some questions for you.

We have an application where the customer would like to have side-facing seats in the cargo area. Do we need to meet FMVSS 207 or 210 and what kind of testing of these seats is required?

Also, we have a question on FMVSS 108. I had a call from a Virginia dealer stating they require additional side marker lights. Can a State require more lighting and does any other State have different standards than FMVSS 108?

Dan Pugh Product Engineer

(Graphics omitted)

ID: 1984-3.17

TYPE: INTERPRETATION-NHTSA

DATE: 08/31/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Homer S. Meyers -- President, Easco, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of August 2, 1984, requesting information on which of the agency's regulations would apply to a new product you are considering. You described the product as a cross-bed seat for use in pickup trucks. The seat would be made of plastic and be mounted in the front of the truck bed facing the rear. The following discussion explains the application of our regulations to your potential product.

Since your potential product would be used as a seating position in a motor vehicle while the vehicle is in motion, each occupant position on the seat would be considered a designated seating position by the agency. If your product is installed as an item of original equipment on a truck before its sale to its first purchaser, the designated seating positions must conform to the requirements of Standard No. 207, Seating Systems; Standard No.208, Occupant Crash Protection; Standard No. 209, Seat Belt Assemblies; and Standard No. 210, Seat Belt Assembly Anchorages. I have enclosed an information sheet explaining how you can obtain copies of our safety standards.

If your product is sold as an item of aftermarket equipment to be installed by a vehicle owner, it would not be required to comply with Standards Nos. 207, 208, 209, and 210. However, we strongly recommend that you provide properly-anchored seat belts at each seating position.

Finally, as a manufacturer of an item of motor vehicle equipment, you have a responsibility under section 151 et seq. of the National Traffic and Motor Vehicle Safety Act to conduct a notification and remedy campaign if you or the agency determines that your product contains a safety-related defect or does not comply with an applicable standard. A copy of the Act is enclosed.

If you have any further questions, please let me know.

August 2, 1984

Chief Counsel National Highway Traffic Safety Administration

Gentlemen:

This company is engaged in the business of manufacturing and marketing pick-up truck accessories.

A potential new product which we are considering is a cross-bed seat for such trucks. A sketch is enclosed. This seat would be formed from plastic sheet of sufficient thickness to provide the necessary strength. It would be mounted in the front of the truck bed facing to the rear. It would be supported by the flange around the top, resting on the lip at the front and sides of the bed, and also by an aluminum leg in the middle of the front edge of the seat.

The seat would be held in place by sheet metal screws going into the lip of the bed. Slots would be cut in the rear of the seat to allow passage of seat belts to fastenings on the floor or front wall of the bed. Alternatively, the belts might be fastened to the seat itself with appropriate back-up strengthening plates.

I would apprediate having your opinion as to the safety standard regulations that would apply to such product.

Homer S. Myers

President

EASCO, Inc.

(Graphics omitted)

ID: 1984-3.18

TYPE: INTERPRETATION-NHTSA

DATE: 08/31/84

FROM: Frank Berndt; NHTSA

TO: Kenneth Guthrie -- Guthrie Trailer Sales Inc.

TITLE: FMVSS INTERPRETATION trailers; PART 565; S565.4(d)(1)

TEXT:

Mr. Kenneth Guthrie Guthrie Trailer Sales, Inc. Box 1026 Great Bend, Kansas 67530

Dear Mr. Guthrie:

This is in response to your recent inquiry to Elizabeth Harrison of this office regarding the change of model year designation on Vehicle Identification Numbers (VIN's) affixed to trailers manufactured by your company. VIN's are required to be affixed under the authority of Federal Motor Vehicle Safety Standard No. 115 (49 CFR 571.115) and 49 CFR Part 565. The change of model year designation in the VIN can be made by changing the code letter to F for model year 1985, according to the table in 49 CFR Part 565.4(d)(1). No notification to the agency is required for a change of model year designation.

A copy of 49 CFR Part 565 is enclosed.

Sincerely,

Frank Berndt Chief Counsel

Enclosure

ID: 1984-3.19

TYPE: INTERPRETATION-NHTSA

DATE: 08/31/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: K. Yamada -- Technical Research Group, Toyota Motor Corporation

TITLE: FMVSS INTERPRETATION

ATTACHMT: 6/26/89 letter from Stephen P. Wood to Melanie Turner (A33; Std. 205); 4/13/78 letter from Joseph J. Levin to Moe Pare (Std. 205); 11/3/88 letter from Melanie Turner to Erika Z. Jones (OCC 2777)

TEXT:

August 6, 1984

Mr. Frank A. Berndt Chief Counsel NHTSA NOA-30 400 Seventh Street, S.W. Washington, D.C. 20590

Dear Mr. Berndt:

SUBJECT: Request for Clarification of FMVSS 205

According to FMVSS 205, the windshield glass of a passenger car must have marks on it, such as "DOT" and the manufacturer's code mark. But, we wonder if any problem would be caused from a compliance point of view if the mark were to appear underneath the moldings when the car was assembled? Please review the diagram below.

"INSERT"

I look forward to your reply. Thank you for your time.

Sincerely,

TOYOTA MOTOR CORPORATION K. Yamada Assistant Manager Technical Research Group U.S. Office

KY:gcm

U.S. Department of Transportation National Highway Traffic Safety Administration AUG 31 1984

Mr. K. Yamada Assistant Manager Technical Research Group Toyota Motor Corporation One Harmon Plaza Secaucus, New Jersey 07094

Dear Mr. Yamada:

This responds to your letter of August 6, 1984, concerning Standard No. 205, Glazing Materials. You asked whether the "DOT" symbol and manufacturer's code mark required by the standard must be visible when a windshield installed in a passenger car. You explained that the windshield molding may cover the required marks.

The certification requirements of section S6 of the standard do not require the markings to remain visible after installation the glazing on a glazing in accordance with the standard and as long as the markings are not removed by the vehicle manufacturer, there is no prohibition against covering the markings. The agency does, however, urge manufacturers to place the DOT symbol and manufacturer's code mark in a visible location whenever possible. Having the symbol and code in a vehicle location enables State motor vehicle inspection officials and U.S. Customs officials to easily determine if the glazing in the vehicle conforms to our standard.

Sincerely,

Frank Berndt Chief Counsel

ID: 1984-3.20

TYPE: INTERPRETATION-NHTSA

DATE: 09/06/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Phillip Ables -- Association for Retarded Citizens/Quachita

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Phillip Ables Work Activity Director Association for Retarded Citizens/Quachita Rt. #1 1908 Winnsboro Rd. Monroe, LA 71202

This responds to your recent letter to Mr. Kratzke of my staff, making for information and assistance regarding regulations applicable to child car seats, any safety standards applicable to those seats and the agency responsible for testing.

Federal Motor Vehicle Safety Standard No. 213, Child restraint systems (49 CFR 571.213) sets forth requirements which must be set by all devices designed for use in a motor vehicle to seat children who weigh not more that 50 pounds. I have enclosed a copy of this standard for your information. As you will see, Standard No. 213 requires, among other things, that the restraint protect a test dummy during a 30 mph crash, that the restraint meet the flammability resistance requirements of Standard No. 302 (copy attached) and that the manufacturer provide detailed instructions on the proper use of the restraint.

The United States does not use a certification process similar to the European Economic Community, in which a manufacturer of motor vehicle equipment is required to deliver the equipment to be certified to a governmental agency for testing and approval. Instead, in the United States the individual manufacturer must certify that its product complies with all applicable safety standards. Further, this agency does not require that the certification be based on a specified number of tests or any tests at all; we only require that the certification tbe made with the exercise of due care on the part of the manufacturer. It is up to the individual manufacturer in the first instance to determine what data, test results, or other information it needs to enable it to certify that its child restraint complies with the requirements of Standard No. 213. We would certainly recommend that a manufacturer producing child restraints certifying compliance with Standard No. 213, especially for the protection requirements in a 30 mph crash. Once the manufacturer determines that its child restraint meets the requirements of Standard No. 213, it certifies that compliance by putting the appropriate language on the label permanently attached to the restraint.

For purposes of enforcement, this agency conducts spot checks of child restraints after they have been certified as complying with Standard No. 213, by purchasing and testing the child restraints according to the procedures specified in the standard. If the restraints pass the tests, no further steps are taken.

If the child restraints fail the test and are determined not to comply with Standard No. 213 or if it is determined that the child restraints contain a safety-related defect, the manufacturer of the child restraint is required to remedy the problem. Section 154(a)(2)(8) of the National Traffic and Motor Vehicle Safety Act of l966, as amended (15 U.S.C. 1414(a)(2)(8) specifies that, in the case of a child restraint which fails to comply with Standard No. 213 or contains a safety-related defect, the manufacturer any elect to either:

l. repair the child restraint, so that the defect or noncompliance is removed; or

2. replace the child restraint with an identical or reasonably equivalent child restraint which does not have the defect or noncompliance.

Whichever of these options is chosen, the child restraint manufacturer must bear the expense and cannot charge the child restraint owner for the remedy.

You noted in your letter that your group had been asked to make car seats for children with physical disabilities. Since you are getting into a highly technical area, you may wish to contact Dr. John Melvin, who is associated with the Transportation Research Institute of the University of Michigan. Dr. Melvin has experience testing child restraints designed for use by physically handicapped children, and could provide you with information concerning that testing. His telephone number is (313) 763-3462.

Should you have any further questions or need more information on this subject, please contact Mr. Kratzke at this address or by telephone at (202) 426-2992.

Sincerely, Frank Berndt Chief Council Enclosures

July 30, l984 Mr. Steve Kratske Office of Chief Council NHTSA 4007 Street Southwest Washington, DC Dear Mr. Kratske:

ARC/O Industries is a sheltered workshop for the handicapped operated by the Association for Retarded Citizens/Quachita. For the past year, we have been manufacturing customized, adaptive equipment-side lyers, prone standers, wheelchair inserts, etc. -for handicapped children.

The equipment we manufacture is made from a special type of laminated cardboard, four sheets thick, of remarkable strength and durability. The material is cheap, resilient and may be cut, painted, glued and doweled without difficulty.

Recently, we have begun manufacturing adaptive inserts for Handicapped Children's Services, a State Agency serving children with physical disabilities. This agency has asked us to make car seats to be used in the transportation of their clients.

I would appreciate any information or assistance you could give us regarding the regulations for manufactured car seats, safety standards, and agency responsible for testing. Thank you for your time and help. Sincerely, Philip Ablas Work Activity Director Association for Retarded Citizens/Quachita