Interpretation ID: nht80-3.47

DATE: 09/11/80

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Great Plains Industries Inc.

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your letter of July 31, 1980 concerning an evaporative cooler you are considering manufacturing for use on motor vehicles. You explained that the unit would mount just outside the upper portion of the passenger window and would block approximately the upper 3 1/2 inches and protrude to the right of the drip rail approximately 10 inches. The following discussion answers your questions and outlines your responsibilities under the National Traffic and Motor Vehicle Safety Act (The Act, 15 U.S.C. 1381 et seq., a copy of which is enclosed)

You first asked whether your evaporative cooler would violate any Federal safety regulations. The agency has not issued any Federal motor vehicle safety standard directly establishing requirements for evaporative coolers. However, as explained below, installation of your cooler may be affected by the agency's proposed standard on direct fields of view. That proposal would prohibit certain obstructions in the driver's field of view. I have enclosed a copy of that notice of proposed rulemaking. 'The agency does not plan to take final action on this proposal until early next year.)

If the field of direct view standard is adopted, then installation of an evaporative cooler in a new vehicle prior to the vehicle's sale to the first purchaser could be affected by section 108(a)(1)(C) of the Act, and the agency's certification regulation (49 CFR 567, a copy of which is enclosed). If a cooler is installed as an add-on item of motor vehicle equipment by a vehicle dealer prior to the vehicle's delivery to the first purchaser, then section 567.7 of the certification regulation would apply. That section provides that a person who alters a previously certified vehicle prior to its first purchase must certify that the vehicle, as altered, still conforms to all applicable standards. Thus, a new vehicle would have to comply with the fields of view requirements with the cooler installed.

Whether or not your cooler is covered by a Federal safety standard, as a manufacturer of motor vehicle equipment you are required to comply with the provisions of the Act pertaining to safety-related defects (sections 151-159, 15 U.S.C. 1411-1419). Thus, if your company learns of a defect relating to motor vehicle safety in its evaporative coolers, you would be required to notify this agency, as well as owners, purchasers or dealers of the equipment, concerning the defect and to remedy the defect without charge. Parts 573, 576, 577 and 579 of the agency's regulations (49 CFR 573, 576, 577 and 579) define in detail a manufacturer's defect recordkeeping, reporting notification and remedy responsibilities with regard to safety-related defects. I have enclosed copies of those (Illegible Word).

You also asked whether you must check each state code prior to sale of your evaporative cooler in that state, since some states may have regulations that are more restrictive than the Federal regulations. In the absence of a Federal standard directly affecting evaporative coolers, state regulations would govern the sale of your cooler. If there was a Federal standard affecting the installation of your cooler, then the Federal regulation may preempt conflicting State regulations. Section 103(d) of the Act provides that no State may have a standard "applicable to the same aspect of performance" of a motor vehicle or item of motor vehicle equipment, unless the state standard is "identical to the Federal standard." The Act does authorize State to establish higher standards of performance than the applicable Federal standard for vehicles or equipment procured for its own use. A determination of whether a Federal standard on direct fields of view would preempt a state standard on the same subject can only be made on a case-by-case basis after final action is taken on the field of view proposal and after reviewing the particular State standard.

You also asked whether you could use certain statements on your cooler advising people to check state regulations before installing the cooler. The validity of such statements would be regulated by state law. Finally, you asked how you could obtain copies of state vehicle codes and information about obtaining a wavier or amendment of such codes. A law library may have copies of such codes. Otherwise, you will probably have to write to each State agency regulating motor vehicles to obtain a copy of their codes.

I hope this information is of help to you. Please contact Steve Oesch of my office if you have any further questions about Federal regulations affecting your product at (202-426-2992).