ID: 22525.ztv

Mr. Harold Holeman
C5 Creations
2 Renee Lane
Newark, DE 19711





Dear Mr. Holeman:

This is in reply to your email of December 26, 2000, asking for interpretations of Federal Motor Vehicle Safety Standard No. 108, "Lamps, Reflective Devices and Associated Equipment."

Your first question is whether "the standards as set forth in FMVSS 108 require that bumper bras or bumper masks have openings around the running lights, parking lights, turning signals, etc.?"

Standard No. 108 does not regulate bumper bras or masks per se. However, lighting equipment is required under Federal law to comply with all requirements of Standard No. 108 when accessory equipment such as bumper bras are installed by regulated persons, whether the equipment is installed as original equipment or aftermarket equipment. The one exception under Federal law is a bra or mask installed by the vehicle owner; if this creates a noncompliance with Standard No. 108, the owner is responsible under any applicable local laws rather than Federal law.

Your next question is "If the bra material is transparent and does not noticeably diminish the luminescence of the lights is the bra design within code without having cutouts for the lights?" Paragraph S7.8.5 prohibits "any styling ornament or other feature, such as a translucent cover or grille, in front of the lens" when the headlamps are activated. We view a transparent bra as an "other feature" and prohibited by Standard No. 108. Thus, a transparent bra could not be installed by a regulated person (i.e., manufacturer, distributor, dealer, or motor vehicle repair business) without violating Standard No. 108, but could be installed by the vehicle owner, provided that it does not violate local laws.

You then ask "Is there a test that should or can be performed to show that the intensity of the running lights is adequate even when covered by the bumper bra?" The photometric tests for each of the lamps covered by Standard No. 108 are essentially those of the Society of Automotive Engineers, which have been incorporated by reference in Standard No. 108. These are laboratory tests rather than tests conducted on the vehicle itself. They could be conducted with the transparent bra or mask material cut to fit the lens. Any diminution in light output must not result in photometric output falling below the minimum levels specified for test points in any individual standard.

Like you, we are not aware of any transparent bra or mask on the market. In general, we do not favor covering the lens of any lamp with other material. Dirt and grime may accumulate to the point that candela is reduced below the minimum specified in the standard. Further, it may not be easily removable by washing the cover.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.4/19/01

ID: 22526.ztv

Mr. Benjamin J. Freeman
1715 Aberdeen Avenue
Aberdeen, WA 98520





Dear Mr. Freeman:

This is in reply to your email of December 26, 2000, asking about the status of military vehicles for spare parts. You have been offered 30 trucks of model years 1990-96.

You state that "as long as I have all engines and transmissions removed and have the remaining vehicles meet all standards for that year the vehicle was manufactured, FMVSS. Or as I thought of mainly offering the spare parts as upgradeable (newer) replacement core components to others like myself with older Land Rovers."

We are not quite clear as to whether the military trucks are Land Rovers or other types of vehicles. We are also unsure whether you would be importing these parts. Nevertheless, we can offer some guidance.

Vehicles manufactured pursuant to U.S. military contracts are exempt from the U.S. Federal motor vehicle safety standards (FMVSS). Military vehicles that are not manufactured pursuant to U.S. military contracts are not exempt from the FMVSS and, if they are imported, they are subject to the same requirements as apply to the importation of non-military motor vehicles. Motor vehicles that are imported for resale and that were not originally manufactured to comply with the FMVSS (such as a Land Rover manufactured for the British armed forces) can only be imported through an entity that our agency has recognized as a Registered Importer. Items of motor vehicle equipment may be imported provided that those items that are subject to one of the FMVSS comply with the applicable standard and are so certified (e.g., brake hoses must be stamped DOT as certification of compliance with FMVSS No. 106, but brake discs or drums do not have to be certified or to comply with any standard, since no FMVSS applies to them).

Used components of military vehicles may be imported and sold as replacement parts for non-military vehicles, subject to the compliance/certification restriction mentioned in the previous paragraph. However, if a vehicle is disassembled, its component parts sent to the United States, and reassembled after importation, or if a vehicle is assembled from imported parts, we consider that the FMVSS that apply to it are those in effect as of the date of its latest assembly regardless of the age of the parts.

If you have further questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel
ref:571#591
d.2/26/01

ID: 2252y

Mr. Allen R. Andrlik
Australian Trade Commission
Australian Consulate General
Suite 2930
321 N. Clark Street
Chicago, IL 60610

Dear Mr. Andrlik:

This responds to your letter asking about Federal regulations that would apply to the "Milford Cargo Barrier" that Milford Industries, an Australian company, manufactures. Your enclosure indicates that the barrier is a type of wire screen that is generally anchored to the sides and floor of a vehicle directly behind the front seat(s). The barrier is intended to protect occupants in a crash from impact with objects carried in the rear of cars, trucks and vans.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you describe. Our standard for glazing materials (Standard No. 205) applies only to interior barriers or partitions that contain glazing, and not to wire screens.

However, there are other Federal laws that indirectly affect the manufacture and sale of Milford's barriers. If the barrier were installed as original equipment on a new motor vehicle, the vehicle manufacturer would be required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards. Installation of the barrier could affect a vehicle's compliance with various safety standards. For example, installation of the barrier could affect compliance with Standard No. 201, Occupant Protection in Interior Impact, which sets energy-absorption requirements for the back of the front seat, to protect occupants in the rear seat who may be thrown forward in a crash. The barrier could also affect compliance with Standard No. 208, Occupant Crash Protection, (safety belts and other restraint systems), and Standard No. 111, Rearview Mirrors (driver field of view). Copies of each of these standards are enclosed.

If the barrier were added to a previously certified new motor vehicle (e.g., a completed van) prior to the vehicle's first sale, the person who modifies the vehicle may have certification responsibilities as an "alterer" under 49 CFR /567.7. This would occur if the installation of the barrier constituted something other than a "readily attachable" component (such as tires or rim assemblies). To determine whether installation of the barrier involves a readily attachable component, the agency considers factors such as the intricacy of installation, and the need for special expertise in installing the barrier.

The advertising brochure you enclosed states: "Expert installation available Australia wide." It also indicates that the barriers are "designed...to the individual dimensions" of the consumer's motor vehicle and are "load rated" (which we understand to mean that the barrier and its attachment are capable of withstanding a rated load). These factors appear to indicate that a degree of special expertise and analysis are needed to install the barrier so that it will perform in the manner intended. In light of these considerations, the barrier appears to be something other than a readily attachable component under /567.7. (If Milford would like to send us information indicating otherwise, we would be happy to review it.)

If the cargo barrier were installed in a new or used vehicle by a commercial business such as a motor vehicle dealer or repair shop, the installer would be subject to Safety Act considerations affecting the installation. Section l08(a)(2)(A) of the Act 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, the commercial installer would have to make sure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards (such as Standards 111, 201 and 208). Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

In addition to the FMVSS considerations, manufacturers of motor vehicle equipment should also be aware that they 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 a copy of our regulation for defect responsibility of motor vehicle equipment manufacturers (49 CFR Part 579) for your information. Any manufacturer which fails to provide notification of or remedy for a defect may be subject to a civil penalty of up to $1,000 per violation.

In addition to the regulations described above, we also bring to your attention a procedural rule which applies to all manufacturers subject to the regulations of this agency. Subpart D of 49 CFR Part 55l, Procedural Rules, requires all manufacturers headquartered outside of the United States to designate a permanent resident of the United States as the manufacturer's agent for service of all process, notices, orders and decisions. This designation should be mailed to the Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, S.W., Washington, D.C. 20590, and must include the following information:

l. A certification that the designation of agent is valid in form and binding on the manufacturer under the laws, corporate-by-laws, or other requirements governing the making of the designation at the time and place where it is made;

2. The full legal name, principal place of business and mailing address of the manufacturer;

3. Marks, trade names, or other designations of origin of any of the manufacturer's products which do not bear its name;

4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;

5. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm or a United States Corporation; and,

6. The full legal name and address of the designated agent.

In addition, the designation must be signed by a person with authority to appoint the agent. The signer's name and title should be clearly indicated beneath his or her signature.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures /ref:VSA#201#567 d:l/9/90

ID: 22539.ztv

Mr. Tomas P. Quintanilla
Fines, Fees & Forfeiture Section
Guam Customs & Quarantine Agency
Logistics & Support Division
1503 Central Ave. Tiyan
Barrigada, Guam 96913

FAX (671) 475-6219





Dear Mr. Quintanilla:

This is in reply to your fax of December 18, 2000, to this agency's "Compliance Branch" re the possible forfeiture of a vehicle that does not comply with applicable Federal motor vehicle safety standards (FMVSS).

The vehicle in question is a 1998 Volkswagen Golf from Japan whose "front windshield and light assembly did not have the required 'DOT' markings, and therefore not enterable into Guam according to U.S.D.O.T." The owner has not brought the vehicle into compliance and is willing to forfeit the vehicle rather than pay the storage fees that have accumulated in the interim. You have asked two questions with respect to this situation:

"1. Can this vehicle be forfeited to a Government of Guam Agency and relinquished to another government agency for government use?"

First of all, we want to call to your attention that the attempted importation of this vehicle was contrary to statute. Under 49 U.S.C. 30141(a), before a nonconforming vehicle can be admitted for purposes of conformance, the National Highway Traffic Safety Administration must have determined that the vehicle is capable of conversion to meet the FMVSS (See list at Appendix A, 49 CFR Part 593). We have made no such determination with respect to the 1998 Volkswagen Golf.

Further, under 49 U.S.C. 30141(d)(1), an importer of a nonconforming vehicle is required to provide a bond to ensure that the vehicle will be brought into conformance. If the vehicle covered by the bond is not brought into compliance, the bond requires the vehicle "to be exported (at no cost to the United States Government) by the Secretary of the Treasury or abandoned to the Government." We interpret this as authorizing forfeiture only to the Federal Government. If the Volkswagen in question is covered by a conformance bond, the terms of the bond require the vehicle to be exported by the Guam Customs & Quarantine Agency, or that it be abandoned to an agency of the United States Government. We prefer that the vehicle be exported to ensure that it will never be sold at auction or otherwise to a private individual for use on the public roads.

If the Volkswagen is not covered by a conformance bond, the only proper disposition of it under the laws that we administer is that it be exported to a jurisdiction outside the United States (see 49 U.S.C. 30102(a)(10)).

"2. What authority can I cite, if any, which states that a non-conforming vehicle can be utilized as long as it is not driven on public roadways?"

There is no authority that you can cite for your proposition. The 1998 Volkswagen Golf is a passenger car manufactured for use on the public roads. The vehicle in question does not comply with applicable FMVSS and cannot be imported for use on or off the public roads.

I hope that this answers your questions.

Sincerely,

John Womack,
Acting Chief Counsel,
ref:591,
d.3/8/01

ID: 2253y

Ms. Linda B. Kent
Senior Account Executive
Market Development
Fasson Specialty Division
250 Chester Street
Painesville, OH 44077

Dear Ms. Kent:

Thank you for your letter requesting an interpretation of whether the use of a product on motor vehicles would violate Standard No. 205, Glazing Materials (49 CFR /571.205). This product, called "Contra Vision," is designed to display messages or advertising materials on windows and other clear surfaces, so that viewers on one side of the clear surface will see the message displayed, while viewers on the other side of the surface will see an essentially transparent surface without any message visible. According to your letter, this product "will be used for promotional signage in store windows, but also has application in rear taxicab windows, as well as rear and side windows of city buses." You asked for our opinion of whether this product complies with Standard No. 205.

Some background on how Federal motor vehicle safety laws and regulation affect this product may be helpful. Our agency is authorized under the National Traffic and Motor Vehicle Safety Act to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve or certify any vehicles or items of equipment, nor do we endorse any commercial products or processes. Instead, the Safety Act specifies that each manufacturer itself must certify that its products meet all applicable safety standards. The agency periodically tests vehicles and items of equipment for compliance with the standards, and also investigates alleged defects related to motor vehicle safety and alleged violations of other statutory provisions.

Your letter indicates that you are already aware that NHTSA has issued a safety standard that applies to the windows installed in motor vehicles. Specifically, Standard No. 205 requires that all new vehicles and all new glazing materials for use in motor vehicles must comply with certain performance requirements. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance. A minimum of 70 percent light transmittance is required in glazing areas requisite for driving visibility, which includes all windows in passenger cars. In trucks and buses, the windshield and windows to the immediate right and left of the driver and the rearmost window, if the latter is used for driving visibility, are considered to be requisite for driving visibility, and therefore subject to the 70 percent minimum light transmittance requirement.

Your letter did not provide any information on the light transmittance that would be measured through glazing with Contra Vision installed on it. The combination of the glazing material and the Contra Vision must allow at least 70 percent light transmittance to comply with the requirements of Standard No. 205. No manufacturer or dealer is permitted to install Contra Vision on the glazing materials on new vehicles, unless the manufacturer or dealer certifies that the vehicle continues to comply with the 70 percent minimum light transmittance and other requirements of Standard No. 205.

After a vehicle is first sold to a consumer, modifications to the vehicle are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with any safety standard. This provision of the law means that no manufacturer, dealer, distributor, or repair business could install Contra Vision if the addition of Contra Vision to the glazing would result in a light transmittance of less than 70 percent, or otherwise cause the vehicle to no longer comply with the applicable requirements of Standard 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $1000 for each noncomplying installation.

Section 108(a)(2)(A) of the Safety Act does not affect vehicle owners. Hence, vehicle owners themselves may install Contra Vision or any other product on the glazing of their vehicle, regardless of whether the installation causes the vehicle to no longer comply with Standard No. 205. Individual States have the authority to regulate the operational use of vehicles by their owners, and, therefore, have the authority to regulate or preclude individual owner modifications to the glazing of their vehicles.

I have enclosed an information sheet that summarizes the relationship between Federal auto safety laws and motor vehicle window tinting. I hope this information is helpful. 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,

Stephen P. Wood Acting Chief Counsel

Enclosure ref:205#VSA d:l/9/90

ID: 2254y

Mr. Howard Kossover
CMI Trailer Division
P.O. Box 1985
Oklahoma City, Ok 73107

Dear Mr. Kossover:

This is in reply to your letter of December 8, l989, to Taylor Vinson of this Office. You have enclosed photographs of a semi-trailer that you are constructing, and wish to know whether the location of the rear turn signal, stop, and taillamps comply with the requirements of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment.

Table II of Standard No. l08 requires each of these lamps to be "on the rear". In addition, the SAE requirements for each of these lamps that are incorporated by reference into Standard No. l08 require that visibility of each lamp shall not be obstructed by any part of the vehicle throughout the photometric test angles for the lamp, unless the lamp is designed to comply with all photometric and visibility requirements with these obstructions considered. In addition, signals from lamps on both sides of the vehicle shall be visible through a horizontal angle from 45 degrees to the left to 45 degrees to the right. To be considered visible, the lamp must provide an unobstructed projected illuminated area of the outer lens surface, excluding reflex, at least 2 square inches in extent, measured at 45 degrees to the longitudinal axis of the vehicle.

The lamps on your semi-trailer are mounted 27 inches from the rear edge of the vehicle. In that position the lamps are not mounted "on the rear". Further, we question whether the 45 degree visibility requirements would be met, especially for the inboard lamps. We do not know whether the extended portion of the vehicle between the lamps is a sufficient obstruction to affect compliance with the photometric requirements. Overall, it does not appear that this design complies with Standard No. l08.

Sincerely,

Stephen P. Wood Acting Chief Counsel / ref:l08 d:l/9/90

ID: 22556.ztv

Mr. Gary L. Johnson, Sr.
Trintex Corporation
P.O. Box 309
Bowdon, GA 30108-0309





Dear Mr. Johnson:

This is in reply to your letter of October 24, 2000, (apparently mailed later, as we did not receive it until January 8, 2001). You ask for a legal interpretation regarding your "Safety Light Cord," an example of which arrived shortly after your letter.

As you describe it, "the light cord attached to a battery activates four-way flashers" on trailers. When installed, "the cord will allow the emergency four-way flashers to blink to improve the visibility of disabled trailers." The cord apparently also can be used to provide power to trailer lighting systems in the event there is a disruption in the electrical connection between tractors and trailers.

Under our regulations, the Safety Light Cord is an item of "motor vehicle equipment," but there are no Federal motor vehicle safety standards that apply to it. This means that its manufacture and use are subject to any standards that may apply to it in any state in which it is sold or used, rather than it being subject to any Federal standards.

We are puzzled by your remark that the Cord activates "the emergency four-way flashers." On motor vehicles other than trailers and motorcycles, the front and rear turn signal lamps activated simultaneously by a vehicular hazard warning system operating unit comprise the hazard warning system required by Federal Motor Vehicle Safety Standard No. 108, "Lamps, Reflective Devices and Associated Equipment." However, Standard No. 108 does not require trailers to have either front turn signal lamps or a hazard warning system operating unit. We believe you mean to tell us that the Cord activates both rear turn signal lamps simultaneously in a flashing mode.

You also mentioned that "all the assembly parts . . . are already D.O.T. approved parts." We do not know what you mean by this statement. The Department of Transportation neither approves nor disapproves parts. Please understand that, even though we have informed you that none of our standards apply to the Safety Light Cord, Trintex may not represent that the Cord is "D.O.T. approved;" you must not use this expression in any manner in connection with this product.

If you have any further questions, you may call Taylor Vinson with whom you have talked previously (202-366-5263). We are returning the sample Cord under separate cover.

We appreciate your efforts to enhance the conspicuity of disabled trailers.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.3/21/01

ID: 22559.drn

William Kurtz, Department Manager
Environmental & Safety Engineering
Mercedes-Benz USA, LLC
One Mercedes Drive, P.O. Box 350
Montvale, NJ 07645-0350





Dear Mr. Kurtz:

This responds to your request for an interpretation of Standard No. 102, Transmission shift lever sequence, starter interlock, and transmission braking effect. You wish to know whether your proposed vehicle design, in which the park position control is not included in the shift lever sequence, but is activated by a separate push-button control mounted on the end of the transmission shift lever, must meet the park position requirement in S3.1.1 of Standard No.102. As explained below, the answer is no.

Before addressing the substantive question that you raised, I note that you have asked for confidential treatment of certain bracketed information in your request for an interpretation, and have provided copies of the letter with the confidential information redacted. In order to save time, I agree to keep confidential the bracketed information, with the exception of a quotation from a letter of September 25, 1998, from Frank Seales, Jr., the National Highway Traffic Safety Administration's Chief Counsel, to BMW of North America, Inc., which is a publicly available letter.

Paragraph S3.1.1 of Standard No 102, Location of transmission shift lever positions on passenger cars, states, in part, " . . . If the transmission shift lever sequence includes a park position, it shall be located at the end, adjacent to the reverse drive position." [emphasis added.]

This provision was interpreted by this office in a letter of September 25, 1998, to BMW of North America, Inc., (BMW). In that letter, we stated in part:

Paragraph S3.1.1 explicitly limits the requirement to those park positions included within the "shift lever sequence." It is our interpretation that if park is not selected by the movement of the shift lever, then the park control is not part of the shift lever sequence. In this case, the sentence quoted above does not apply, and the park control does not have to be located at the end, adjacent to reverse.

The park position described in your letter is not included in the shift lever sequence. It is selected not by the movement of the shift, lever but by pushing on a push-button control mounted on the end of the transmission shift lever. Therefore, as was the case for the vehicle with the park position control described in our September 25, 1998, letter to BMW, Mercedes-Benz USA, LLC's vehicle with the park position control described in your letter need not meet the park position requirement in S3.1.1 of Standard No. 102.

I hope this information is helpful. If you have any questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:102
d.2/2/01

ID: 2255y

Mr. Scott K. Hiler
Manager, R & D Lab
The C.E. White Co.
417 N. Kibler Street
New Washington, OH 44854

Dear Mr. Hiler:

This responds to your letter seeking an interpretation of Standard No. 210, Seat Belt Assembly Anchorages (49 CFR /571.210). Specifically, you asked if the strength test set forth in that standard requires simultaneous testing of all the safety belt anchorages for a passenger seat in school buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less, when those anchorages are installed on the seat frame, or whether those anchorages can be tested individually. The answer is that such anchorages are tested individually under the current provisions of the strength test in Standard No. 210.

Standard No. 222, School Bus Passenger Seating and Crash Protection (49 CFR /571.222) establishes the occupant protection requirements for passenger seating positions in school buses. Section S5(b) of Standard No. 222 provides that school buses with a GVWR of 10,000 pounds or less shall meet the requirements of Standard No. 210, among other standards. Section S4.2 of Standard No. 210 sets forth the strength test for anchorages. Section S4.2.4 reads as follows: "Except for common seat belt anchorages for forward-facing and rearward-facing seats, floor-mounted seat belt anchorages for adjacent designated seating positions shall be tested by simultaneously loading the seat belt assemblies attached to those anchorages."

Note that the only anchorages subject to a simultaneous testing requirement are floor-mounted anchorages. The anchorages described in your letter and shown in the photographs enclosed with that letter are mounted on the seat frame. Therefore, those anchorages would not be tested simultaneously to determine compliance with Standard No. 210.

I should also point out that NHTSA has proposed to amend section S4.2.4 of Standard No. 210 so that all seat and floor-mounted anchorages common to one seat would be tested simultaneously during the strength test. I have enclosed a copy of that proposal for your information. The interpretation in this letter may no longer be correct after the effective date of any final rule adopting that proposal.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

/ref:210 d:l/l2/90

ID: 2256y

Ms. Linda L. Conrad
Nives Ford, Inc.
15690 South Harlem Avenue
Orland Park, IL 60462

Dear Ms. Conrad:

This responds to your letter asking what legal obligations are imposed on car dealers to replace air bags on used vehicles accepted as trade-ins. Your letter explained that your dealership has received, as a trade-in, a 1989 car that had a driver-side air bag as original equipment. According to your letter, the car had been in a crash and the air bag was deployed. Hence, when this car was taken in trade by your dealership, its air bag was not functional. You asked whether any law requires you to replace the deployed air bag with a new air bag before selling the car.

In response to your question, we can advise you as follows: (1) Federal law does not require a car dealer to replace a deployed air bag in a used vehicle; (2) a dealer may be required by State law to replace that equipment, or be liable for failure to do so; and (3) our agency strongly encourages dealers to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants.

We will first address the Federal legal issues, since our agency administers the Federal vehicle safety law. The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised this authority to issue Standard No. 208, Occupant Crash Protection (49 CFR /571.208). Among other things, Standard No. 208 requires that cars be equipped with automatic crash protection. "Automatic crash protection" means that a vehicle is equipped with occupant restraints that require no action by vehicle occupants. The performance of automatic crash protection is dynamically tested, that is, the automatic systems are required to comply with certain injury reduction criteria as measured by test dummies in a barrier crash test at speeds up to 30 mph. The requirement for automatic crash protection was phased-in for passenger cars, beginning with 1987 model year new cars. That phase-in is now completed, and all passenger cars manufactured on or after September 1, 1989 are required to be equipped with automatic crash protection.

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) 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 or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." (Emphasis added) Because of this statutory requirement, your dealership cannot legally sell or offer for sale a new car equipped with an air bag if you know that the air bag has been deployed.

However, section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)) provides that the prohibitions in section 108(a)(1)(A) "shall not apply to the sale, offer for sale, or the introduction or delivery for introduction in interstate commerce of any motor vehicle after the first purchase of it in good faith for purposes other than resale." In other words, once the 1989 Chrysler LeBaron described in your letter was sold and delivered to its first retail purchaser, the vehicle was no longer required by Federal law to comply with Standard No. 208.

After the first purchase of a vehicle in good faith for purposes other than resale, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard, unless such manufacturer, distributor, dealer, or repair business reasonably believes that such vehicle ... will not be used (other than for testing or similar purposes in the course of maintenance or repair) during the time such device or element of design is rendered inoperative.

In the case of passenger cars equipped with air bags pursuant to Standard No. 208, this section would prohibit any manufacturer, distributor, dealer, or repair business from removing, disabling, or otherwise "rendering inoperative" the air bags, except as needed to make repairs to the car. When any such repairs are completed, the car must be returned to the customer with the air bag capable of functioning at least as well as it was able to do when the car was received by the manufacturer, distributor, dealer or repair business. Any violations of this "render inoperative" prohibition in the Safety Act would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note that the "render inoperative" provision does not impose an affirmative duty on dealers to replace equipment that was previously removed by someone else, or to repair equipment that was damaged in a crash. Thus, if your dealership purchases a used car that was originally equipped with an air bag pursuant to Standard No. 208, and the air bag was deployed before your dealership took possession of the car, Federal law does not require your dealership to replace the deployed air bag with a functioning air bag before you resell the car.

Despite the absence of any requirement in Federal law, dealers may still be required by State law to replace deployed air bags, or they may be liable for failing to do so. You should be aware that the individual States have authority to require that used vehicles have certain equipment installed and functioning when the used vehicles are sold. You may wish to contact the State of Illinois to learn if there are any applicable laws or regulations that would apply in these circumstances. Additionally, you may wish to consult a private attorney familiar with the law in the State of Illinois regarding potential liability in tort for your dealership in these circumstances. While such issues are beyond this agency's area of legal expertise, we do note that every State provides for some degree of civil liability for consumer products and repair work. The potential for finding a car dealer liable may be greater when that dealer sells a used vehicle without one of the originally-installed safety systems intact and functional.

As a final note, and in addition to the legal considerations, it is NHTSA's strong policy recommendation that dealers always replace air bags following deployment, unless the vehicle is to be junked. Indeed, we have long recommended the repair, restoration, or replacement of all safety systems that may have been damaged in a crash, including the safety belts and brakes, as well as the air bag systems now being installed in passenger cars.

While air bags are in some respects "supplemental" to safety belts, in that the air bags provide additional protection, the air bags are nevertheless vitally important to the vehicle's overall capability to protect occupants in a crash. Those vehicles are designed so that the air bag will always work, even if the safety belt is not worn; and the safety belt system is designed to work in conjunction with the air bag in serious frontal crashes. Additionally, the consumer information available to the purchaser of the used car described in your letter -- in the vehicle owner's manual, from the carmaker and insurance companies, and from NHTSA and other safety groups -- would identify the car as one equipped with a driver-side air bag. The purchaser may well expect a used car to provide the safety equipment that was provided by the original manufacturer.

In short, from the standpoints of auto safety, dealer risk management, consumer protection, customer relations, and good business practices, NHTSA strongly advocates the replacment of deployed air bags.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

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