Interpretation ID: nht76-5.44

DATE: 01/13/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: GENERAL Motors Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of December 2, 1975, asking this agency's opinion as to whether Federal Motor Vehicle Safety Standard No. 115, Vehicle Identification Number, would preempt any differing State law or regulation specifying the content of a vehicle identification number. You asked the question in the context of a Vehicle Equipment Safety Commission action recommending such a regulation to the States.

Standard No. 115 requires a vehicle identification that is unique to a manufacturer during any ten-year period. It does not specify the length or the content of the number. The question, therefore, becomes whether the Federal safety standard on vehicle identification numbers was intended generally to cover all aspects to those numbers, and preempt any differing State rules, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the safety standard on vehicle identification numbers, No. 115, is intended to cover all aspects of vehicle identification numbering relative to the vehicles to which it applies, and that any aspects for which there are no specific requirements were intended by this agency to be left to the discretion of the manufacturers. State regulations differing from the Federal standard on this subject are found to "impair the federal superintendence of the field," within the meaning of the Florida Lime doctrine, and any such State regulation would be preempted under section 103(d), 15 U.S.C. 1392(d).

SINCERELY,

ATTACH.

November 14, 1975

James B. Gregory -- Administrator, U. S. Department of Transportation, National Highway Traffic Safety Administration DEAR DR. GREGORY:

Re: Preemption and FMVSS 115

The Vehicle Equipment Safety Commission (VESC) will hold a hearing on December 11, 1975 in Kissimmee, Florida preliminary to adoption of a regulation entitled "Minimum requirements for the design of a vehicle identification number system for passenger cars". The regulation, if adopted at the VESC meeting, would apply to passenger cars registered in States that in turn adopt the VESC regulation.

Due to the relationship between the VESC and its member States [discussed in detail below], the December 11 hearing raises the real concern that one or more States will adopt the proposed VESC regulation as a part of their vehicle code within a few months thereafter. Thus, the VESC regulation can be expected to very quickly become part of the vehicle law in several states.

The proposed VESC regulation is not identical to the performance requirements of FMVSS 115, "Vehicle Identification Number". The difference will be discussed in detail below.

Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 states in part:

Whenever a Federal motor vehicle safety standard established under this subchapter 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 or item of equipment which is not identical to the Federal standard.

General Motors is of the opinion that the National Highway Traffic Safety Administration (NHTSA) intended FMVSS 115, "Vehicle Identification Number", to be a comprehensive, uniform and exclusive safety standard applicable" to all aspects of vehicle identification numbering; that generally those State vehicle identification numbering requirements which apply to passenger cars and which are not identical to FMVSS 115 are preempted by FMVSS 115 under

authority of Section 103(d) as quoted above; and that specifically those provisions dealing with the content of the digits and letters used in the vehicle identification number are preempted by FMVSS 115 under authority of Section 103(d). GM anticipates that NHTSA holds the same opinion in the matter as GM does and requests that NHTSA express its opinion on this important subject in response to this letter and to the VESC prior to the December 11 meeting.

VESC AND ITS MEMBER STATES

The Beamer Resolution, Public Law 85-684, August 20, 1958, gave Congressional assent to agreements or compacts among States for "cooperative effort and mutual assistance in the establishment and carrying out of traffic safety programs, including but not limited to, the enactment of uniform traffic laws . . . and . . . for the establishment of such agencies, joint or otherwise, as they deem desirable for the establishment and carrying out of such traffic safety programs". Attached is a copy of the Beamer Resolution.

The Vehicle Equipment Safety Compact was subsequently developed as the mechanism by which States could compact with one another for the purposes stated in Public Law 85-684. Attached is a copy of the Compact.

Article III of the Compact creates the VESC as the agency of the member States.

As stated in Article I, subsection (b)(1), of the Compact, one purpose of the Compact is to "promote uniformity in regulation of and standards for equipment". Article V of the Compact authorizes the VESC after hearings to adopt "rules, regulations or codes embodying performance requirements or restrictions for any item or items of equipment covered in the report [indicating the need for regulation]". (This provision appears in the Compact notwithstanding the fact that the Beamer Resolution relegates compact activities in the field of "safe automobile . . . design" to research only.) Under Article V of the Compact, once a regulation has been adopted by the VESC, each party State must duly consider it for adoption.

Sections (e), (f), and (g) of Article V of the Compact provide that member States may adopt or reject VESC regulations by administrative or legislative action as appropriate under individual State constitutions and statutes.

Forty-two States and the District of Columbia are now members of the Vehicle Equipment Safety Compact. The eight states that are not members are Alabama, Alaska, Minnesota, Mississippi, Nebraska, Nevada, South Carolina, and West Virginia.

In thirty of the member States, a VESC regulation becomes a mandatory State equipment requirement only after the individual State's Legislature enacts it into law.

A VESC regulation, however, can be adopted by administrative action alone in the following twelve States: Connecticut, Florida, Iowa, Maryland (deemed approved in absence of legislative disapproval), New Hampshire, New Jersey, Oklahoma, Pennsylvania, Tennessee, Texas, Vermont and Virginia.

Under the procedure followed by VESC, the December 11 hearing may be the final administrative step before adoption by VESC of this regulation. Indeed, the first line of the attached Notice of Public Hearing states that the hearing is preliminary "to final adoption" of the regulation. Following VESC adoption, as many as twelve States can adopt the VESC regulation administratively without legislative action, whereupon the regulation acquires the force of law immediately in those States. In those twelve States, six months is the maximum time within which to act but no minimum time is specified.

The twelve States not only may adopt the VESC regulation but are required by statute to do so unless "the public safety" requires otherwise. Article V, section (g) of the Compact, which has been incorporated in the statutes of the member States, so provides. If only "public safety" is relevant in the State hearing prior to adoption of the regulation by an individual State, an objection that the regulation is preempted by FMVSS 115 under authority of Section 103(d) might not be heeded.

Since its establishment, the VESC had adopted a number of regulations. Among them are Regulation V-1, New Tires; Regulation (Illegible Word) Minimum Requirements For Motor Vehicle Connecting Devices and Towing Methods; Regulation VESC-6, Minimum Requirements For School Bus Construction and Equipment; and VESC-9, Safe Operating Condition of Truck and Bus Type Tires.

VESC can adopt the regulation soon after the December 11 hearing and thereby trigger simultaneous action in forty-two States and the District of Columbia to adopt the regulation as law. If the NHTSA does not express its opinion on preemption at the VESC hearing or prior to adoption by VESC of the regulation, it will be necessary for each of the forty-three member jurisidictions to consider the merits of the preemption argument individually with possibly differing results.

Thus, urgent need exists for the NHTSA to express its position on preemption at or soon after the December 11 VESC hearing.

DIFFERENCES IN CONTENT BETWEEN PROPOSED VESC REGULATION AND FMVSS 115

FMVSS 115 and the proposed VESC regulation apply to the same class of vehicles, namely, passenger cars. See paragraph 2, Scope, of proposed VESC regulation.

The attached yellow pages from the VESC proposal deal with the passenger car regulations. The pink pages deal with a proposal for non-motive power recreational vehicles which is included for information only.

Paragraph 6 of the proposed VESC regulation sets forth the basic requirements. These require the VIN to contain in sequence exactly two digits called the Make Code Field, five or fewer digits called the Identifier Field, and exactly eight digits called the Indicator Section.

FMVSS 115 does not expressly address the make-up of the vehicle identification number. However, it is GM's understanding that FMVSS 115 is intended by the NHTSA to be a comprehensive, uniform, and exclusive standard covering all aspects of vehicle identification numbering. As such, the absence of an express requirement concerning the make-up of the vehicle identification number does not permit a State to impose such a requirement. This understanding is supported by your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning FMVSS 108. See Attachment. In that letter you stated:

The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by

the States. Such a position is impractical, where the agency's intent is to have a comprehensive, uniform regulation in a given area . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect: in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits. [Emphasis added]

POTENTIAL INTERFERENCE WITH FUTURE NHTSA PLANS

If it is assumed for sake of argument only that preemption is not present, adoption of the VESC regulation in any of the VESC member jurisdictions could result in serious practical complications of future NHTSA plans.

In September 1975, the International Standards Organization (ISO) adopted two vehicle identification number standards: Vehicle Identification Numbering System 3779

and World Manufacturer Identifier Coding System 3780, which apply to all "road vehicles" including passenger cars. The text of the officially adopted standards will issue in January 1976. The European Economic Community (EEC) or Common Market Council, at its November 7, 1975 meeting, began considering these ISO standards for incorporation in the proposed EEC Council directive for statutory places and inscriptions for motor vehicles and trailers. Once the Common Market Council has incorporated the ISO standard, all Common Market countries must within 18 months "accept" the standard, i.e., recognize the standard as the exclusive or an alternative method of compliance with vehicle identification numbering requirements.

The ISO standard sets a maximum of 17 digits in the VIN. Although the standard can be met by fewer than 17 digits, one or more of the Common Market countries may adopt the standard in a way that requires no more and no less than 17 digits. Regardless of whether this happens, there is a direct conflict between the ISO standard which sets a maximum of 17 digits and the proposed VESC regulation which sets a maximum of 15 digits.

The ISO standard includes a World Manufacturer Identifier in the vehicle identification number which makes it possible to identify the country of origin as well as the manufacturer. This feature of the standard presumably will facilitate efforts to curtail international taffic in stolen cars. For that reason, it may be favored by the Interagency (DOT-Justice) Committee on Auto Theft Prevention. If curtailing international traffic in stolen cars prevents some car thefts from occurring in the United States, it may be that the NHTSA would also favor incorporating the ISO standard in FMVSS 115. If so, there will be a

head-on conflict with any VESC member jurisdiction that has adopted the VESC regulation because the VESC regulation requires two and only two digits in the Make Code Field, whereas the ISO standard requires three.

In the absence of Federal preemption in this matter, if any of the Common Market countries adopt the ISO standard in such a way that the 17 digits permitted by that standard are mandatory, adoption of the VESC standard in any of the VESC member-state jurisdications would require domestic manufacturers to have two separate VIN systems, one for vehicles sold in the United States and another for vehicles sold for export. This would be a confusing, wasteful and untenable situation.

GM respectfully requests NHTSA's opinion regarding FMVSS 115 in relation to the VESC regulation and the adoption thereof by any State or the District of Columbia. Your opinion should also be conveyed directly to the Vehicle Equipment Safety Commission either at the December 11 meeting or at the VESC headquarters in Washington.

Frank W. Allen -- Assistant General Counsel, GENERAL MOTORS

ENCS.