ID: 2514y

Ms. Marcia M. Avis
1697 Latham
Birmingham, MI 48009

Dear Ms. Avis:

This responds to your letter to this agency asking about Federal regulations that apply to "an accessory seat pad" for booster seats and child restraint systems. I regret the delay in responding.

Your letter describes your product as a fabric seat cushion which is intended to provide comfort and head support to a child when the child is sleeping in the restraint system. You state that the cushion would be "held in place" on the seat with "the strap system inherent to the booster seat along with the weight of the child on the seat."

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for child restraint systems (Standard No. 213) applies only to new systems and not to aftermarket components of a child restraint system, such as an aftermarket seat-pad.

However, there are other Federal laws that indirectly affect your manufacture and sale of the seat-pad. Under the National Traffic and Motor Vehicle Safety Act, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your seat-pads contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

If your product would be installed by commercial businesses instead of child seat owners, those businesses would have to do so in a manner consistent with section 108(a)(2)(A) of the Act. The provision states: "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 or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." Thus, this provision prohibits manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) from installing your seat-pad if the addition of your product would negatively affect the compliance of a child restraint with Standard 213 and if the installing business were aware of that effect.

There are elements of design incorporated in a child restraint system pursuant to Standard 213 that may be affected by installation of a seat-pad. For example, Standard 213 sets flame-retardant performance requirements for materials used in a child restraint system. (See paragraph S5.7 of Standard 213, referencing Standard 302, Flammability of Interior Materials (copy enclosed).) Installation of rapidly burning materials could vitiate the compliance of the child restraint with FMVSS No. 213. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of 108.

In addition, Standard 213 sets crash protection requirements for all new child restraint systems. It is unclear from your letter whether the seat-pad has provision for passing the belt systems of a child restraint around or through the pad and cushion. If the installation of your seat-pad would impair the function of a belt installed to restrain the child, then any manufacturer, distributor, dealer, or motor vehicle repair business installing the seat-pad would likely be regarded as having knowingly rendered inoperative a Federally required element of design in child restraint systems, in violation of 108(a)(2)(A).

The prohibitions of 108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle or motor vehicle equipment. Nevertheless, this agency urges you to voluntarily ensure that your seat-pad would not render inoperative the crash protection and flammability resistance of any child restraint.

I hope this information is helpful. Please contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

/ref:213 d:5/3l/90

ID: 2515y

Mr. William D. Falcon
Commission on Accreditation
for Law Enforcement Agencies, Inc.
4242B Chain Bridge Rd.
Fairfax, VA 22030

Dear Mr. Falcon:

This responds to your letter to our agency concerning your law enforcement standard (71.4.1) for an interior partition you call a "safety barrier." I regret the delay in responding.

The copy of 71.4.1 you provided states: "Vehicles used primarily for transporting prisoners (80 percent of their use) should have the driver separated from the prisoner by a safety barrier." The "commentary" to 71.4.1 states that, "The safety barrier may be of wire mesh or heavy gauge plastic to prevent the prisoner from having access to the driver's compartment ..." Mr. Steven Crowell wrote you last year suggesting that this commentary should be revised to state: "The safety barrier must be one which has had a label or tag affixed to it which certifies compliance with all applicable" Federal motor vehicle safety standards (FMVSS's). Mr. Crowell believes such certification is required by Federal law, and apparently bases this on our September 13, 1985 letter to him. You ask whether his understanding is correct.

Mr. Crowell is not entirely correct in his understanding of our certification requirements. Our regulations do not generally require materials in safety barriers to be certified, except for glazing materials in barriers. Standard No. 205, Glazing Materials, applies to all glazing installed in a motor vehicle, including the glazing used for an interior partition. The standard does not require labels or tags to certify the compliance of the glazing material with it. However, the standard does require that glazing material in a barrier must bear a mark to certify compliance with the standard. Standard No. 205 is the only FMVSS that applies directly to interior partitions (and only if the partition contains glazing material). There is no other FMVSS to which the partition itself would be certified.

Since glazing material in safety barriers need not be certified by labels or tags, and because safety barriers made from materials other than glazing materials are not certified under Federal law, we believe 71.4.1's seeking to require affixing a certification label or tag on the barriers may engender confusion about NHTSA's requirements. We note also that there is no Federal requirement for persons to certify modifications made to used vehicles. Therefore, we recommend against 71.4.1's seeking to require certifications in the form of labels or tags affixed to safety barriers installed in new or used vehicles.

However, we agree with Mr. Crowell that safety barriers should be installed in a safe manner, and believe that our regulations promote this to the extent possible under the Vehicle Safety Act. If a new vehicle is altered by the installation of a partition as original equipment (prior to the vehicle's first sale to a consumer), the person making the installation would be required by 49 CFR Part 567, Certification, to certify (by attaching a label to the vehicle) that the vehicle complies with all applicable FMVSS's. These FMVSS's include the standards for head restraints (Standard 202), interior impact protection (201), rearview mirrors (111), and crash protection (208).

We know of no reason why a suitable partition can't be developed which could be placed in a vehicle equipped with head restraints and shoulder belts. Further, it does not seem to be a difficult matter for the barrier to be installed so that the vehicle would meet Standard 111's requirements for rearview mirrors.

On the other hand, installation of the barrier could interfere with the compliance of the back of the front seat with Standard 201 (copy enclosed). Paragraph S3.2 of that standard sets energy-absorption requirements for the back of the front seat to protect the heads of rear seat occupants thrown forward in a crash. The partition design should be capable of meeting Standard 201's requirements for energy absorption and should not be hazardous to head impact.

If the safety barrier were installed on a used vehicle by a vehicle manufacturer, distributor, dealer or repair business, the installer would be subject to a civil penalty of $1,000 per violation if he knowingly rendered inoperative the compliance of the vehicle with any safety standard. This prohibition is contained in 108(a)(2)(A) of the Vehicle Safety Act.

The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under Federal law, they may install or remove any items of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards.

Manufacturers of motor vehicle equipment, such as the safety barrier you described, also have responsibilities under the Vehicle Safety Act regarding safety defects and noncompliances in their products. Under 151 et seq., they must notify purchasers about safety-related defects and noncompliances and remedy the product free of charge. The Safety Act imposes a civil penalty of $1,000 per violation upon any manufacturer who fails to provide notification of or remedy for a defect or noncompliance in its motor vehicles or motor vehicle equipment. In view of the fact that a police department may alter its own vehicles without regard to 108(a)(2)(A), we believe Mr. Crowell might be suggesting that 71.4.1 recommend that the safety barrier should be installed in a manner that does not negatively affect the compliance of the vehicle with applicable FMVSS's. NHTSA generally encourages vehicle owners not to remove safety equipment or otherwise alter their vehicles if the modification would degrade the safety of the vehicle. Therefore, while we do not agree with Mr. Crowell that you should seek to require affixed certification labels or tags for barriers, we agree that installation of the barrier should be done in a manner that avoids degrading the overall safety of the vehicle.

I hope this information is helpful. Please let me know if you have any further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

/ref:201#202#205#VSA d:5/3l/90

ID: 2516y

The Honorable Lloyd Bentsen
United States Senate
1100 Commerce, Room 7C14
Dallas, TX 75242

Dear Senator Bentsen:

Thank you for your letter to Administrator Curry on behalf of your constituent, Johannah Bonewald of Voskamp Motors in Hallettsville, Texas. The Administrator has asked me to reply. Ms. Bonewald enclosed a bulletin from the Ford Rent-A-Car System to all System members setting out Ford's policy concerning the rental of Ford vans with more than 10 designated seating positions. Ms. Bonewald questions the basis under Federal law for Ford's policy with regard to using these vans to transport students, and asked for additional information about the Federal law in this area. I am pleased to have this chance to provide you with the following information.

Ford's policy described in the bulletin is that dealers should not rent vans with more than 10 seating positions to customers, if the dealer knows or has reason to know that the vehicle will be used to transport students. The bulletin also recommends that dealers renting these vans should obtain a signed statement from the customer to the effect that the vehicle is not being used to carry students to and from school or related events. While Ford's policy is consistent with Federal requirements and this agency's safety recommendations, rental companies are not actually required by Federal law to take the actions recommended by Ford.

The National Highway Traffic Safety Administration (NHTSA) has the authority under the National Traffic and Motor Vehicle Safety Act (the Safety Act) to issue motor vehicle safety standards that apply to new motor vehicles and items of motor vehicle equipment. Several of our standards set forth requirements for new "school buses," which are defined as vehicles designed for carrying more than 10 persons that are "sold, or introduced into interstate commerce, for purposes that include carrying students to and from school or related events." Thus, it is the vehicle's anticipated use, determined at the time of the new vehicle's first sale, that indicates whether it is a "school bus" for the purposes of the safety standards.

Section 108(a)(1)(A) of the Safety Act specifies that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any motor vehicle manufactured on or after the date any applicable safety standard takes effect unless the vehicle conforms with all such standards. Thus, every person that manufactures a bus that it knows will have the purpose of carrying students must certify that it complies with all school bus safety standards. Similarly, if a dealer sells or offers to sell to a school district or school bus contract operator a bus that will be used as a school bus, the Safety Act makes the dealer responsible for ensuring that the vehicle it sells is certified as complying with all applicable school bus standards.

The agency has previously stated, in the enclosed December 31, 1975 Federal Register notice that accompanied the adoption of the regulatory definition of "school bus," that if a seller has reason to believe that a bus will be used for student transportation, the seller can clarify the intentions of the purchaser by requesting a written statement of purpose from the purchaser. If that statement indicates that the vehicle will be used for student transportation, the seller can only provide a certified school bus.

Pursuant to section 108(b)(1) of the Safety Act, however, the requirement that a vehicle comply with all applicable safety standards does not apply after the first purchase of the vehicle for purposes other than resale. In a typical rental situation, the person offering the vehicle for rent has already purchased the vehicle for a purpose other than resale, i.e., in order to offer the vehicle to the public for rent. Thus, a dealer wishing to offer vehicles for rent for the purposes of carrying students is not required by the Vehicle Safety Act to offer vehicles that fully comply with all safety standards applicable to school buses. Further, once a vehicle has been sold and delivered to the person who plans to rent the vehicle to the public, the vehicle is no longer considered to be new and therefore is not required to remain in compliance with all applicable safety standards.

Having said this, I would like to emphasize some additional points. First, a manufacturer, distributor, or dealer that sells a new vehicle to a rental company that the seller knows or has reason to know intends to rent it to customers for the purpose of carrying students to or from school or related events is required by Federal law to sell that rental company only a vehicle certified as complying with the school bus standards. In Ms. Bonewald's letter to you, she indicates that the schools in the area are "probably the biggest customer" Voskamp Motors has for the rental of its 15-passenger vans. Any person that knows or has reason to know of this fact must either:

a. sell Voskamp Motors only certified school buses for use in Voskamp's rental fleet, or b. obtain assurance from Voskamp Motors that the vans it purchases that are not so certified will not be rented to customers that will use them for student transportation.

Second, although NHTSA does not have authority to regulate the use of vehicles as school buses, the State of Texas does have such authority, and has exercised that authority. Your constituent may wish to contact the State government to learn more about any State requirements applicable to vehicles used as school buses.

Third, we strongly endorse the use of certified school buses as the vehicles rented for the purposes of transporting school children, because the certified school bus has been shown to be the safest way to transport students. Based on these safety considerations, NHTSA endorses Ford's recommendation that its dealers rent only certified school buses for student transportation purposes.

I hope this information is helpful in responding to your constituent. I have also forwarded a copy of this correspondence to the Ford Rent-A-Car System. Please do not hesitate to contact me if you have any further questions or need some additional information.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

cc: Mr. W.A. Jacques Dealer Fleet Operations Manager Ford Rent-A-Car System 300 Renaissance Center P.O. Box 43311 Detroit, MI 48243

ref: VSA d:5/25/90

ID: 2517y

Mr. Charles T. Thomas
Prestige Travel
10333 Richmond Avenue, Suite 170
Houston, Texas 77042

Dear Mr. Thomas:

This is in reply to your recent undated letter asking for a waiver of one of the requirements of 49 CFR 591.5(g) for persons working outside the United States and seeking to import a nonconforming vehicle, i.e., the requirement that "the importer's assigned place of employment has been outside the United States at all times between October 31, l988, and the date the vehicle is entered into the United States." You are able to meet the other requirements of paragraph (g), but you returned to the United States in September l988 after a 12-year employment abroad, and your l985 Jaguar remains in Germany.

We are sorry that we are unable to provide the waiver you seek. This specific requirement was established by Congress as part of an exception to more rigorous requirements that became effective on, and applicable to, vehicles imported on and after January 31, l990, of this year. Further, Congress did not provide us with any authority to waive this requirement. These provisions were added to the National Traffic and Motor Vehicle Safety Act by the Imported Vehicle Safety Compliance Act of 1988, Public Law 100-562.

However, our inability to waive this requirement does not mean that you will be unable to import your car. Under its new authority, the agency has tentatively determined that l985 Jaguar automobiles are eligible for importation (as well as a number of other cars). Public comments on the tentative determinations were due in mid-May. After a final determination is made, and assuming that it is favorable, you may then import your Jaguar pursuant to the requirements of 49 CFR 591.5(f). In other words, you may import the vehicle either through an importer registered with this agency as one who will certify compliance of the Jaguar with Federal safety standards, or by yourself upon demonstration that you have a contract with a registered importer.

I enclose a copy of Part 591 for your information, as well as a list of registered importers approved as of April 13. We anticipate a final determination on vehicle eligibility this summer. If you wish to inquire as to the status of the determination, or to obtain an updated list of registered importers, please address your further correspondence to Director, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, Washington, D.C. 20590.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

ref:59l d:7/3/90

ID: 2518y

Mr. Pat Crahan
Director, Government Relations
U-Haul International
2727 North Central Avenue
P. O. Box 21502
Phoenix, Arizona 85036-1502

Dear Mr. Crahan:

Thank you for your letter to Dr. August Burgett of this agency, seeking an interpretation of Standard No. 115, Vehicle Identification Number -- Basic Requirements (49 CFR 571.115). I apologize for the delay in this response. Specifically, you stated that U-Haul manufactures its trailers itself and never sells those trailers to any other party. You asked if Standard No. 115 requires trailers that are used exclusively by the party that manufactures them to be identified with a vehicle identification number (VIN). The answer to your question is yes.

S2 of Standard No. 115 specifies that the standard applies to trailers, and makes no exception for trailers that are used exclusively by the manufacturer. S4.1 of Standard No. 115 provides that: "Each vehicle manufactured in one stage shall have a VIN that is assigned by the manufacturer." Again, no exceptions are set forth for vehicles that will be used exclusively by the manufacturer. Because those regulatory provisions do not include any special exceptions, every new trailer must have a VIN, irrespective of whether the trailer will only be used by the same party that manufactured it.

I hope this information is useful. If you have any further questions or need any additional information about this topic, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel ref:115 d:7/9/90

ID: 2519y

Mr. Charles T. Thomas
Prestige Travel
10333 Richmond Avenue, Suite 170
Houston, Texas 77042

Dear Mr. Thomas:

This is in reply to your recent undated letter asking for a waiver of one of the requirements of 49 CFR 591.5(g) for persons working outside the United States and seeking to import a nonconforming vehicle, i.e., the requirement that "the importer's assigned place of employment has been outside the United States at all times between October 31, l988, and the date the vehicle is entered into the United States." You are able to meet the other requirements of paragraph (g), but you returned to the United States in September l988 after a 12-year employment abroad, and your l985 Jaguar remains in Germany.

We are sorry that we are unable to provide the waiver you seek. This specific requirement was established by Congress as part of an exception to more rigorous requirements that became effective on, and applicable to, vehicles imported on and after January 31, l990, of this year. Further, Congress did not provide us with any authority to waive this requirement. These provisions were added to the National Traffic and Motor Vehicle Safety Act by the Imported Vehicle Safety Compliance Act of 1988, Public Law 100-562.

However, our inability to waive this requirement does not mean that you will be unable to import your car. Under its new authority, the agency has tentatively determined that l985 Jaguar automobiles are eligible for importation (as well as a number of other cars). Public comments on the tentative determinations were due in mid-May. After a final determination is made, and assuming that it is favorable, you may then import your Jaguar pursuant to the requirements of 49 CFR 591.5(f). In other words, you may import the vehicle either through an importer registered with this agency as one who will certify compliance of the Jaguar with Federal safety standards, or by yourself upon demonstration that you have a contract with a registered importer.

I enclose a copy of Part 591 for your information, as well as a list of registered importers approved as of April 13. We anticipate a final determination on vehicle eligibility this summer. If you wish to inquire as to the status of the determination, or to obtain an updated list of registered importers, please address your further correspondence to Director, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, Washington, D.C. 20590.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

ref:59l d:7/3/90

ID: 2520y

Mr. Peter Brown
President, KC HiLites, Inc.
Avenida de Luces
Williams, AZ 86046

Dear Mr. Brown:

This is in reply to your letter of April 25, l990, asking for our "comments and approval" regarding an automotive lighting product that your company intends to market. The product is intended for use in a four headlamp systems with lens designations of "L", "LF" or "HB4" on the outboard lamps, and "U", "UF" or "HB3" on the inboard lamps. In normal operation, the lower beam is extinguished when the upper beam is activated; your device would ensure that the lower beam would remain activated when the upper beam is used. You view this as permissible under S5.5.8 of Motor Vehicle Safety Standard No. l08.

Initially, let me note that we have no authority to "approve" any device or invention for use on motor vehicles. We advise whether such products are permissible under the Federal motor vehicle safety standards, but this advice must not be represented in advertising as Federal approval of the device or invention.

Section S5.5.8 of Standard No. l08 states in pertinent part that "On a motor vehicle equipped with a headlighting system designed to conform to the photometric requirements of Figure 15, the lamps marked "L" or "LF" may be wired to remain permanently activated when the lamps marked "U" or "UF" are activated. Standard No. 108 further specifies that headlamps designed to conform to Figure l5 are the four-lamp sealed beam system Type F (S7.3.7(b)), and a four-headlamp integral beam system (S7.4(a)(1)). In addition, certain types of replaceable bulb headlamp systems may also be designed to conform to Figure l5 photometrics, as shown in recently-adopted Figure 26 (copy enclosed). Replaceable bulb headlamps are also required to have the HB Type number on the lens, as well as the "U" and "L" markings. Therefore, installation of your device on the headlighting systems mentioned above would be permitted by Standard No. l08, and you need not be limited to systems that use HB3 and HB4 light sources.

With respect to the copy on the material you submitted for review, it would be more accurate to reword the marking references to state "'LF', 'L', or 'L' and 'HB4' on the upper. . . and the corresponding designation 'UF', 'U', or 'U' and 'HB3' on the lower. . . ."

We also note your remark "Quad-Beam gives you this extra margin of lighting safety that the factory left out." There is no basis in fact for this statement. Some drivers prefer more foreground light, but there is no indication that the addition of the lower beam when the upper beam is in use has a positive effect upon lighting safety.

As you requested, we are returning your samples.

Sincerely,

Paul Jackson Rice Chief Counsel Enclosures /ref:l08 d:7/2/90

ID: 2521y

Mr. Ken Stone
Automotive Safety Engineering
Canewdon Consultants Group Limited
The Maltings, Locks Hill
South Street
Rochford, Essex SS4 1BB
England

Dear Mr. Stone:

This is in response to your telefax to Barry Felrice, Associate Administrator for Rulemaking, concerning the definition of a walk-in van. I apologize for the delay in responding to your inquiry.

You requested a definition of the term "walk-in van," particularly with regard to floor to roof height requirements, bulkhead requirements, step height requirements, and the presence of a front passenger seat. Although Federal Motor Vehicle Safety Standard No. 208 uses the term to describe a specific type of vehicle, neither that standard nor any other agency regulation defines the term. None has been necessary to date since the term is largely self-defining. For a vehicle to be regarded as meeting the term, it must be possible for a person to enter the occupant compartment in an upright position. Examples of walk-in vans include the GMC Step Van, and the large delivery vans used by the U.S Postal Service and the United Parcel Service in this country.

If you need further information concerning whether the vehicle you propose to import would be considered a walk-in van, I suggest that you provide this office with information concerning the configuration and dimensions of the vehicle. Photographs of its interior and exterior would be helpful as well.

I hope you have found this information useful.

Sincerely,

Paul Jackson Rice Chief Counsel /ref: VSA d:6/29/90

ID: 2522y

AIR MAIL

Mr. Ed McCarron Western Star Trucks Inc. 2076 Enterprise Way Kelowna, British Columbia, Canada V1Y 6H8

Dear Mr. McCarron:

This responds to your letter asking about the application of Safety Standard No. 302, Flammability of Interior Materials, to a particular mattress design, and how the mattress would be tested under the standard. I regret the delay in responding.

Paragraph S4.1 of Standard 302 sets forth a listing of the vehicle occupant compartment components that must be certified as complying with the flammability resistance requirements of paragraph S4.3. Paragraph S4.1 includes a reference to "mattress covers." You ask whether NHTSA would consider six components of your mattress design to be included in the term "mattress cover" and thus subject to Standard 302. (The first five components you ask about, and a portion of the sixth, satisfy the criterion in S4.2 of being within 1/2 inch of the occupant compartment air space.)

As we understand your sketch, the first three components (which you called the "cover," "foam" and "foam backing") encase the mattress core, or filling. As such, if our understanding is correct, these three constitute the mattress ticking, which we consider as the fabric case permanently enclosing the filling of a mattress. NHTSA has said in past interpretations of Standard 302 that the term "mattress cover" includes both a removable covering put over a finished mattress and the mattress ticking. Thus, the first three components would be subject to the standard.

These three components, which you said in a telephone conversation are quilted together, would be tested separately under S4.2.1 of the standard if they do not adhere to other materials at every point of contact. (The fact that these three are quilted, or stitched, indicates to us that they do not so adhere.) If any of these components adhere to other material at every point of contact, then it would be tested as a composite with the other material.

The fourth component in your sketch is the mattress "fill." Paragraph S4.1 of the standard lists mattress covers only. NHTSA has consistently interpreted S4.1 as not including the mattress filling.

The fifth component is a fabric "corner reinforcement" that appears to be approximately two inches in length and stitched on the outside of the mattress cover. NHTSA indicated in interpretative letters of Standard 302 dated December 15, 1972 and May 1, 1972 that a component that is "incorporated into" a component that is listed in S4.1 is subject to the standard. (The agency said in the December 1972 letter that "mattress cover" includes tufting, since tufting is incorporated into mattress covers.) Since the fifth component is sewn to the corner of the mattress and appears to be made part of the mattress cover, we believe that the corner reinforcement is incorporated into the mattress cover. Thus, the fifth component would be subject to the standard. If it does not adhere to another material at every point of contact, it is tested separately under S4.2.1.

The sixth component is the "fill backing" which appears to be an internal divider between the mattress fill and the springs. It appears from your sketch that the fill backing is not part of the mattress ticking, because the backing is inside the mattress and is separate from the mattress ticking. Thus, we conclude the sixth component is excluded from the standard.

I hope this information is helpful.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:302 d:6/29/90

ID: 2523y

The Honorable Lawrence J. Smith
U. S. House of Representatives
Washington, D.C. 20515

Dear Mr. Smith:

I am writing in response to your letter forwarding correspondence from your constituent, Mr. Joel Leitson, with respect to litigation recently brought by the United States against several firms that install plastic film, or "tint," on automobile windows.

You have asked about the statutory authority under which these suits were brought. Pursuant to section 103 of the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act"), 15 U.S.C. 1392, the National Highway Traffic Safety Administration ("NHTSA") has issued safety standards applicable to new motor vehicles and items of motor vehicle equipment. One of the standards that we have issued under this authority is Federal Motor Vehicle Safety Standard No. 205, Glazing Materials (49 CFR 571.205), which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(i)(A) of the Safety Act, 15 U.S.C. 1397(a)(1)(A), provides that no person may manufacture or sell any vehicle unless it is in conformity with all applicable safety standards. Pursuant to section 108(b)(1) of the Safety Act, 15 U.S.C. 1397(b)(1), this paragraph does not apply after a vehicle is first sold to a consumer. However, both before and after the first sale, section 108(a)(2) of the Safety Act, 15 U.S.C. 1397(a)(2), 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 . . . ."

Thus, by installing tint film on automobiles that reduces the light transmittance of their glass below 70 percent, the firms in question have been rendering those vehicles "inoperative," in violation of the Safety Act. The same principle would apply to a service station that removed an airbag or a safety belt from a vehicle, since such an action would create a noncompliance with the occupant protection requirements of NHTSA's standards.

You also asked for our comments on whether Florida's statutes are preempted by these suits. We assume that you are referring to the provision of Florida law that prohibits the operation of any vehicle in the State of Florida that has glazing with less than 35 percent light transmittance. This statute, and similar statutes adopted by other states, do not purport to legitimize conduct -- the rendering inoperative of glazing by tint installation firms -- that is illegal under the Safety Act. Thus, there is no conflict with Federal law, and Florida may continue to enforce its operating rules.

I hope that this responds to your questions. If we can be of further assistance, please let me know.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:205#VSA d:6/25/90