ID: GF003409-2

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
PO Box 23078
Santa Fe, NM 87502-3078

Dear Mr. Tunick:

This responds to your e-mail of March 22, 2004, in which you ask several questions with respect to a hardtop convertible vehicle equipped with a retractable glass roof. The vehicle in question will have a tinted glass roof, which retracts rearward to a stowed position inside the vehicles rear deck (trunk). A thin carbon fiber frame will surround the glass roof panel. A latch mechanism secures the roof to the windshield header when the roof is not stowed. You ask whether the glass roof, as well as carbon fiber frame and latch mechanism are exempt from the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 201, Occupant protection in interior impact. You also ask what roof glazing materials would comply with FMVSS No. 205, Glazing materials.

In establishing FMVSS No. 201, the agency excluded convertible roof frames and linkage mechanisms from the requirements of the standard because a countermeasure such as padding would interfere with their movement (see 60 FR 43031, at 43047). S6.3(a) of FMVSS No. 201 provides that a vehicle need not meet the requirements of S6.1 through S6.2 for any target located on a convertible roof frame or a convertible roof linkage mechanism. Accordingly, the carbon fiber roof frame and the latch mechanism in your vehicle are exempt from S6.1 and S6.2 of FMVSS No. 201.

With respect to the glass portion of the convertible roof in your vehicle, the agency has previously stated that FMVSS No. 201 was not intended to prevent injuries resulting from impacts with glazing. Accordingly, the glass portion of the convertible roof is not subject to the requirements of FMVSS No. 201.

Finally, FMVSS No. 205 contains no light transmittance requirements applicable to a glass roof described in your letter because roof glazing is in an area not requisite for driver visibility. The type of glazing material that can be used in the glass portion of the convertible roof is any glazing material subject to FMVSS No. 205, including glazing materials incorporated by reference from ANSI/SAE Z26.11996.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:201
d.7/19/04

ID: 0566

Mr. Gerard Bonvin
Auto Cheyenne USA Inc.
6611 1/2 West 6th Street
Los Angeles, CA 90036

Dear Mr. Bonvin:

This is in reply to your letter of December 15, 1994, with respect to the relationship of certain DOT regulations to the Cheyenne, a small front-wheel drive utility vehicle that you wish to import and distribute in the United States.

You have asked the following questions:

"What are the procedure to follow in order to be categorize Small Volume manufacturer?"

Your question assumes that we have a category of "small volume manufacturer." We do not, and there is no exclusion from the Federal motor vehicle safety standards (FMVSS) based upon the volume produced by the manufacturer. All motor vehicles must comply with all FMVSS, unless the agency has exempted them from one or more of the standards. We do recognize limited production volume in the regulation under which a manufacturer who produces less than 10,000 motor vehicles of all types may apply for a temporary exemption on the basis that compliance would cause it substantial economic hardship, and must provide production information as part of its application.

"Is there really a big difference on the test in order to certified between small volume and over 10000 vehicles?"

As indicated above, if a manufacturer produces less than 10,000 vehicles, that fact is relevant only if that manufacturer wishes to file a hardship exemption application. If a small volume manufacturer has not been exempted, it must comply with the same requirements as apply to those whose yearly production exceeds 10,000.

"Is there any difference between two seaters or four seaters on crash test?"

That is a question to be answered by a vehicle manufacturer. If a four-seater is heavier than a two- seater, the difference

in weight could make a difference in whether a vehicle with a borderline design passes or fails a crash test.

"Is there a rear crash impact?"

Yes. FMVSS No. 301 Fuel System Integrity specifies a 30 m.p.h. moving barrier rear impact test.

"Do we need Air Bags if we have Seat belts?"

Currently, vehicles like the Cheyenne are not required to have air bags. However, as explained below, air bags are one means of complying with a the automatic protection requirement which is being phased in for vehicles like the Cheyenne, and eventually the Cheyenne will be required to have air bags for both the driver and right front passenger.

Generally, Jeep-type vehicles are considered to be "multipurpose passenger vehicles" (MPVs). Based on your description, we also assume that the Cheyenne will have a GVWR of 8,500 pounds or less. A requirement in FMVSS No. 208, Occupant Crash Protection, which is being phased in requires a specified percentage (varying by year) of each manufacturer's light trucks (a category which includes MPVs with a GVWR of 8,500 pounds or less) manufactured on or after September 1, 1994 to be equipped with automatic crash protection. The two types of automatic crash protection currently offered are automatic safety belts and air bags.

A recent amendment of FMVSS No. 208 will require at least 80 percent of each manufacturer's light trucks manufactured on or after September 1, 1997 and before September 1, 1998 to be equipped with an air bag and a manual lap/shoulder belt at the driver's and right front passenger's seating positions. All light trucks manufactured on or after September 1, 1998 must be equipped with an air bag and a manual lap/shoulder belt at these seating positions.

"Do we need a buzzer for the seat belt?"

Yes, an audible warning indicator is required.

"Is the dashboard need to be padded?"

We cannot answer your question. That decision is to be made by the manufacturer if its tests show that the dashboard is within the head impact area and that some type of padding is necessary to meet FMVSS No. 201 Occupant Protection in Interior Impact. The FMVSS are performance standards and we do not impose design restrictions on the manufacturer, such as requiring that the dashboard be padded.

"Is there any specific ways on how to install the windshield?"

No, because that would be design restrictive and, as noted above, the FMVSS are performance standards. The performance requirement for windshields is in FMVSS No. 212 Windshield Retention which specifies what the windshield mounting must do in a 30 mph frontal barrier crash. However, if the MPV is an open vehicle with a fold-down windshield, FMVSS No. 212 does not apply to it.

"What is the surface of the windshield that need to wiped? As far as Windshield Wipers, how many cycles and how many different speed?"

You will find the answers to your questions in FMVSS No. 104 Windshield Wiping and Washing Systems. For a copy of these and all our regulations, you should have a copy of "Title 49 Code of Federal Regulations Parts 400-999". This is available from the U.S. Government Bookstore at ARCO Plaza, C-Level, 505 South Flower Street, Los Angeles.

Sincerely,

Philip R. Recht Chief Counsel

ref:555 d:2/2/95

ID: 1985-01.27

TYPE: INTERPRETATION-NHTSA

DATE: 02/04/85

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mr. John L. O'Connell Department of Motor Vehicles State of Connecticut

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. John L. O'Connell Department of Motor Vehicles State of Connecticut State Street Wethersfield, Connecticut 06109

This responds to your October 15, 1984 letter to the National Highway Traffic Safety Administration (NHTSA) asking about an emergency door which is installed on a school bus in addition to the emergency exits required by Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Window Retention and Release.

Your first question asked whether this additional emergency exit is required to comply with Standard No. 217. In particular, you asked about the labeling requirements. FMVSS No. 217 requires that additional exits on school buses which are intended as emergency exits must comply with the emergency exit requirements applicable to exits in buses other than school buses. These additional emergency exits would be required to be labeled in accordance with the requirements for exits in non-school buses.

Your second question asked whether the door may be sealed shut. You also asked whether sealing the door would have any effect on the compliance of the bus with FMVSS No. 221, School Bus Body Joint Strength.

The answer to this question depends on who seals the door, and when this work is performed. As you probably know, NHTSA does not have the authority to prohibit an owner, such as a school, from modifying its own vehicle. A school may modify its own vehicle in any manner without assuring that the vehicle remains in compliance with motor vehicle safety standards. Of course, it may be more difficult to insure a vehicle which does not conform to the safety standards. The school can also expose itself to increased liability in the event that one of their noncomplying vehicles is involved in an accident.

After the vehicle is sold to its first purchaser, manufacturers, dealers, distributors or repair businesses are prohibited from knowingly rendering inoperative any device or element of design installed on or in a vehicle in compliance with an applicable motor vehicle safety standard. The additional door could be sealed by a manufacturer or repair-type business as long as there were sufficient other emergency exits available on the vehicle so that it remains in compliance with the requirements of Standard No. 217. Moreover, the door were sealed after the vehicle's first sale, FMVSS No. 221 would not be a factor. This is because doors are not considered "body panel joints" subject to the requirements of the standard. Since the additional door was not regulated by Standard No. 221, there would be no rendering inoperative of the compliance of the door with that standard.

If you decide to Seal the emergency exit shut, we would encourage you to remove the labels to avoid possible confusion in the event of an accident.

If the door was made inoperable prior to the vehicle's first sale, FMVSS No. 221 would be a factor. This is because the person sealing the door is an "alterer," and must attach a label indicating compliance of the altered vehicle with the standards. When the door is sealed, it becomes part of the bus wall structure. As such, any joints on the door that would fall within the ambit of Standard No. 221 would be required to comply with that standard. The alterer would also be required to remove any labels and operating instructions from the exit which was sealed, since labels indicating that a door can be used as an emergency exit when in fact the door is inoperative would not conform to Standard No. 217.

Sincerely,

Frank Berndt Chief Counsel

October 15, 1984

Mr. Frank Berndt Chief Counsel U.S. Department of Transportation National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D. C. 20590

Dear Mr. Berndt:

This correspondence relates to Thomas Built Buses, Inc., who manufacture a school bus with a right side emergency door, in addition to the emergency exits required by FMVSS No. 217.

If a school bus is manufactured in conformance with the emergency exit requirements of FMVSS No. 217, and additionally, a right side emergency exit is provided. must that additional exit be in compliance with all the requirements of FMVSS, including markings?

If it does not have to meet the requirements of FMVSS No. 217, may it be sealed shut? If yes, would a sealed door have any significant effect on the school bus's meeting the requirements of FMVSS No. 221 for School Bus Body Joint Strength?

Your response to these questions will be a valuable assistance to us in guiding our inspection personnel.

Very truly yours

John L. O'Connell Public Transportation Administrator

JLO:ECP/k

cc: Howard Smith Bus Sales Ron Marion, Thomas Built Buses

ID: nht95-1.41

TYPE: INTERPRETATION-NHTSA

DATE: February 2, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Gerard Bonvin -- Auto Cheyenne USA Inc.

TITLE: NONE

ATTACHMT: Attached to 12/15/94 letter from Gerard Bonvin to Philip Recht (OCC 10566)

TEXT: Dear Mr. Bonvin:

This is in reply to your letter of December 15, 1994, with respect to the relationship of certain DOT regulations to the Cheyenne, a small front-wheel drive utility vehicle that you wish to import and distribute in the United States.

You have asked the following questions:

"What are the procedure to follow in order to be categorize Small Volume manufacturer?"

Your question assumes that we have a category of "small volume manufacturer." We do not, and there is no exclusion from the Federal motor vehicle safety standards (FMVSS) based upon the volume produced by the manufacturer. All motor vehicles must comply with all FMVSS, unless the agency has exempted them from one or more of the standards. We do recognize limited production volume in the regulation under which a manufacturer who produces less than 10,000 motor vehicles of all types may apply for a temp orary exemption on the basis that compliance would cause it substantial economic hardship, and must provide production information as part of its application.

"Is there really a big difference on the test in order to certified between small volume and over 10000 vehicles?"

As indicated above, if a manufacturer produces less than 10,000 vehicles, that fact is relevant only if that manufacturer wishes to file a hardship exemption application. If a small volume manufacturer has not been exempted, it must comply with the same requirements as apply to those whose yearly production exceeds 10,000.

"Is there any difference between two seaters or four seaters on crash test?"

That is a question to be answered by a vehicle manufacturer. If a four-seater is heavier than a two-seater, the difference in weight could make a difference in whether a vehicle with a borderline design passes or fails a crash test.

"Is there a rear crash impact?"

Yes. FMVSS No. 301 Fuel System Integrity specifies a 30 m.p.h. moving barrier rear impact test.

"Do we need Air Bags if we have Seat belts?"

Currently, vehicles like the Cheyenne are not required to have air bags. However, as explained below, air bags are one means of complying with a the automatic protection requirement which is being phased in for vehicles like the Cheyenne, and eventually the Cheyenne will be required to have air bags for both the driver and right front passenger.

Generally, Jeep-type vehicles are considered to be "multipurpose passenger vehicles" (MPVs). Based on your description, we also assume that the Cheyenne will have a GVWR of 8,500 pounds or less. A requirement in FMVSS No. 208, Occupant Crash Protection , which is being phased in requires a specified percentage (varying by year) of each manufacturer's light trucks (a category which includes MPVs with a GVWR of 8,500 pounds or less) manufactured on or after September 1, 1994 to be equipped with automatic crash protection. The two types of automatic crash protection currently offered are automatic safety belts and air bags.

A recent amendment of FMVSS No. 208 will require at least 80 percent of each manufacturer's light trucks manufactured on or after September 1, 1997 and before September 1, 1998 to be equipped with an air bag and a manual lap/shoulder belt at the driver's and right front passenger's seating positions. All light trucks manufactured on or after September 1, 1998 must be equipped with an air bag and a manual lap/shoulder belt at these seating positions.

"Do we need a buzzer for the seat belt?"

Yes, an audible warning indicator is required.

"Is the dashboard need to be padded?"

We cannot answer your question. That decision is to be made by the manufacturer if its tests show that the dashboard is within the head impact area and that some type of padding is necessary to meet FMVSS No. 201 Occupant Protection in Interior Impact. The FMVSS are performance standards and we do not impose design restrictions on the manufacturer, such as requiring that the dashboard be padded.

"Is there any specific ways on how to install the windshield?"

No, because that would be design restrictive and, as noted above, the FMVSS are performance standards. The performance requirement for windshields is in FMVSS No. 212 Windshield Retention which specifies what the windshield mounting must do in a 30 mph frontal barrier crash. However, if the MPV is an open vehicle with a fold-down windshield, FMVSS No. 212 does not apply to it.

"What is the surface of the windshield that need to wiped? As far as Windshield Wipers, how many cycles and how many different speed?"

You will find the answers to your questions in FMVSS No. 104 Windshield Wiping and Washing Systems. For a copy of these and all our regulations, you should have a copy of "Title 49 Code of Federal Regulations Parts 400-999". This is available from the U.S. Government Bookstore at ARCO Plaza, C-Level, 505 South Flower Street, Los Angeles.

Sincerely,

ID: 1984-4.2

TYPE: INTERPRETATION-NHTSA

DATE: 12/13/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Blue Bird Body Company -- Thomas D. Turner, Manager, Engineering Services

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter dated December 5, 1983, to the National Highway Traffic Safety Administration (NHTSA) concerning the remanufacture of school buses. You requested NHTSA to confirm that when an old bus body is placed on a new chassis "the chassis is the incomplete vehicle and that the completed vehicle must conform to all applicable FMVSS and be properly certified based on a date no earlier than the date of manufacture of the chassis." You also requested an interpretation that the remanufacture of a school bus using a new body on an old chassis would be considered the manufacture of a new school bus which would be required to be certified based on the date of manufacture of the final stage, completed vehicle.

You requested confirmation that NHTSA consider the school bus chassis to be the "incomplete vehicle" under 49 CFR Part 568, Vehicles Manufactured in Two or More Stages. "Incomplete vehicle" is defined in 49 CFR @ 568.2 as: an assemblage consisting, as a minimum, of frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

If the school bus chassis is completed to the extent that it has the above-listed components and merely needs the addition of a body by a final-stage manufacturer, it would be considered an incomplete vehicle.

You are correct in your understanding of 49 CFR @ 567.5, Requirements for Manufacturers of Vehicles Manufactured in Two or More Stages. The completed vehicle must be properly certified by the final-stage manufacturer as conforming to all applicable Federal Motor Vehicle Safety Standards based on a date no earlier than the manufacturing date of the incomplete vehicle, and no later than the date of completion of the final-stage manufacture. The final-stage manufacturer must be consistent in its choice of completion date; it cannot choose one date to determine applicability of certain standards while choosing another date for other standards.

You are also correct that the agency has previously said that the final-stage manufacturer's use of a new body on an old chassis does not amount to the manufacture of a new motor vehicle. The agency is aware of your concern regarding the remanufacture of school buses using a new bus body on an old chassis. NHTSA acknowledges your petition for rulemaking filed pursuant to 49 CFR Part 552, Petitions for Rulemaking, Defect, and Noncompliance Orders, and will conduct a technical review of your petition in accordance with this part.

SINCERELY,

BLUE BIRD

BODY COMPANY

December 5, 1983

Administrator National Highway Traffic Safety Administration

SUBJECT: PETITION FOR RULEMAKING AND/OR INTERPRETIVE ACTION

Dear Ms. Stead:

Blue Bird Body Company has received requests to mount new school bus bodies on used school bus chassis that are several years old. In the past these requests have been few and scattered and we have declined this business due to the obvious concerns dealing with safety, liability, compliance, certification, etc. We currently plan to continue with our practice of turning down these requests, however, with these requests becoming more numerous, we feel it is necessary to address the compliance and certification requirements involved in remanufacturing a school bus using a new body and a used chassis.

It is our understanding, based on the December 29, 1977 NHTSA letter from Chief Counsel, Joseph J. Levin Jr. to the Honorable John Tower, reference NOA-30, and other NHTSA correspondence, that the manufacture of new motor vehicles includes the remanufacture of vehicles when such remanufacture is accomplished using a new chassis. Thus, remanufacture of a school bus using a new school bus chassis and a used school bus body constitutes the manufacture of a new school bus which would be subject to all applicable Federal Motor Vehicle Safety Standards in effect on the date of manufacture. The date of manufacture would be any date no earlier than the date of manufacture of the incomplete vehicle and no later than the date of completion of the final stage manufacture. It is our interpretation that the chassis is the incomplete vehicle and therefore, the date of manufacture of the chassis is the earliest limiting date for the purposes of compliance and certification. Thus, a 1975 bus body, for example, built without FMVSS 221 Joint construction or FMVSS 222 Seats and Barriers, would have to be upgraded to meet these and other applicable standards if it were to be mounted on a 1983 school bus chassis and completed as a final stage vehicle. We request your confirmation that the chassis is the incomplete vehicle and that the completed vehicle must conform to all applicable FMVSS and be properly certified based on a date no earlier than the date of manufacture of the chassis.

Assuming that the above interpretation is correct and confirmed by NHTSA, it is the opinion of Blue Bird Body Company that the manufacture of school buses using new chassis is a safe and acceptable practice because both body and chassis will be required to conform to current FMVSS and the completed vehicle is required to be properly certified.

The situation discussed in the first paragraph above, however, where school buses are remanufactured using a new body and an old chassis causes us concern. If the NHTSA does not consider this practice as manufacture of a new school bus, then apparently, no certification would be required and the vehicle would not have to conform to current FMVSS. If the agency does consider the remanufacture of school buses using new bodies and old chassis as the manufacture of a new vehicle, then questions of responsibility for compliance of the incomplete vehicle (the chassis), certification procedures, dates of effectivity, etc., are presented and must be addressed. For example, if a 1983 school bus body were to be mounted on a 1975 school bus chassis and completed as a school bus, what date would be used in determining the FMVSS that apply to the completed vehicle? If the 1975 date of manufacture of the incomplete vehicle (the chassis) is used, then the completed school bus would not be required to have FMVSS 221 Joint Construction or FMVSS 222 Seats and Barriers. We do not believe this would be an acceptable situation in terms of safety nor in the best interest of the school buses' owner, operator, passengers, the manufacturer of the incomplete and/or completed vehicle, the NHTSA or the pupil transportation industry in general.

In the interest of safety and for the benefit of all parties concerned, Blue Bird Body Company requests that the NHTSA consider the situations discussed herein, initiate Rulemaking action and/or issue appropriate interpretations, to address the remanufacture of school buses. We feel appropriate action concerning remanufacture of school buses using new bodies on old chassis would be to (1) define this as the manufacture of a new vehicle to which FMVSS apply, (2) require that remanufactured school buses using new bodies on old chassis meet all applicable FMVSS and be certified based on the date of final manufacture of the final stage, completed vehicle.

I trust that this letter provides sufficient information to NHTSA to enable proper action to be taken. If Blue Bird can be of any assistance or further information is needed, please feel free to contact me.

Thomas D. Turner Manager Engineering Services

C: WILBUR RUMPH -- V.P. ENGINEERING

ID: nht75-1.18

DATE: 12/31/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in further response to your letter of November 12, 1975, asking whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.

There are presently no requirements in the Federal motor vehicle safety standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, 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 issuing of requirements for brake wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

November 12, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration

Re: Request for Statement of Scope of Braking Standards; Proposed Uniform State Brake Component Wear Warning Regulation

The Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) requests a statement by the National Highway Traffic Safety Administration of the preemptive effect of Federal Motor Vehicle Safety Standards 105, 105-75, and 121, in light of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966. MVMA believes that those standards preempt any state statute or regulation implementing the proposed uniform state regulation requiring brake wear warning devices recently adopted by the Vehicle Equipment Safety Commission. Briefly, that regulation would require that manufacturers of all highway use vehicles except motorcycles, trailers and semi-trailers provide a "visible, audible or tactile signal" when brake friction materials are worn to the discard point. (A copy of the VESC regulation is appended to this letter. The copy is of the draft prepared by the VESC for its annual meeting on July 30, 1975, which was adopted without substantial amendment on that date.)

Forty-two states and the District of Columbia are now members of the VESC. Under the terms of the Vehicle Equipment Safety Compact, "each party state obligates itself to give due consideration to any and all rules, regulations and codes issued by the Commission and hereby declares its policy and intent to be the promotion of uniformity in the laws of the several party states relating to equipment." A copy of the Vehicle Equipment Safety Compact is also appended.

MVMA includes in its membership manufacturers of more than 99% of the motor vehicles made in the United States. Our members are vitally affected by both Federal and state regulation of motor vehicles.

MVMA believes that state legislation or regulation incorporating this proposed brake wear warning device requirement is preempted by presently effective Federal motor vehicle safety standards which govern brake performance of affected vehicles; i.e., FMVSS 105 and 121. We urge the Administrator to publish a clear statement in the Federal Register, addressing this preemption issue and asserting that under the authority of Section 103(d) of the Safety Act, such legislation or regulation is preempted by these standards. MVMA believes that the issue raised here is as important as the question raised by the Japan Automobile Manufacturers Association on state enforcement policies, which occasioned the Administration to publish a strong preemptive statement in the Federal Register on June 2, 1971 (36 FR 10744).

Summary of Legal Issues

We believe that a brief review of the treatment given to the preemption question in the National Traffic and Motor Vehicle Safety Act is appropriate.

Section 103(d) of the Act (15 USCA Section 1392(d)) provides:

"(d) Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal Standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The express statutory inclusion of such a preemption provision is relatively unusual. The statute does not broadly permit states to establish or enforce identical standards; it prohibits standards which are not identical to Federal standards. Congress made plain the necessity for Federal preemption and the broad reach the preemption provision was to have. For example, the Senate Report (S. Rep. No. 1301, 89th Cong., 2d Sess., 1966) stressed the paramount Federal Role (page 4):

"Out of the committee's hearings, there emerged a clear outline of the basic needs to be served by Federal legislation:

"1. The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.

"2. While the contribution of the several States to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." [Emphasis added]

The Senate Report also explained why preemption was needed to insure uniformity (page 12):

"The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. At the same time, the committee believes that the States should be free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to the particular aspect of the vehicle of item of vehicle equipment (sec. 104)." [Emphasis added.]

The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess., 1966) makes a similar statement. See page 11 where the House Report emphasizes the need for national solution of this "nationwide problem", and see also the emphasis on uniformity at page 17 -- "this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards."

In view of this legislative history of Section 103(d), it is clear that the comprehensive attention which the National Highway Traffic Safety Administration has given to brake systems and components in the formulation of Standards 105 and 121 preempts the regulation which the Vehicle Equipment Safety Commission now proposes for legislative or regulatory adoption by member states.

The currently effective Federal standard on hydraulic brake systems, FMVSS No. 105 (49 CFR S 571.105), states in its "Purpose and scope" section that it specifies requirements for ". . . brake systems intended to ensure adequate braking performance under normal and emergency conditions." The National Highway Traffic Safety Administration has taken the position that the purpose and scope provision of a Federal standard defines the aspect of performance covered -- see 35 Fed. Reg. 18000, November 24, 1970. The aspect of performance thus stated in FMVSS No. 105 necessarily embraces what the VESC now proposes as State law or regulation. Although FMVSS 105 does not deal in specific detail with all of the components of a hydraulic brake system, this system approach follows the Congressional expectation of how the Federal standards should operate. * Moreover, in addition to its system approach "to ensure adequate braking performance", FMVSS No. 105 specifically addresses failure of the system and requires a system effectiveness warning indicator light (@ 4.2.2). That requirement alone leaves no room for State adoption of a different warning requirement such as the VESC now proposes.

* For example, the Senate Report states at page 6:

"Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safe performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance (sec. 101(b)). Manufacturers and parts suppliers will thus be free to compete in developing and selecting devices and structures that can meet or surpass the performance standard.

"The Secretary would thus be concerned with the measurable performance of a braking system, but not its design details. Such standards will be analogous to a building code which specifies the minimum loadcarrying characteristics of the structural members of a building wall, but leaves the builder free to choose his own materials and design. Such safe performance standards are thus not intended or likely to stifle innovation in automotive design."

FMVSS No. 105-75 becomes effective on January 1, 1976. This standard has been under intense consideration by the Administration and by industry since 1968. In the course of that consideration the NHTSA considered and rejected matters which are pertinent here. For example, the Administration had proposed that brakes be installed so that the lining thickness of drum brake shoes and brake pads could be visually inspected without removing the drums or pads. Subsequently the Administration decided to abandon that proposal (37 Fed. Reg. 17972, September 2, 1972). The Administration has also stated that FMVSS No. 105 would provide consumers "with braking systems that have been optimized with respect to safety, performance, and cost," (38 Fed. Reg. 3047, February 1, 1973).

For any state now to enact an additional warning requirement would fly in the teeth of FMVSS No. 105-75. Such action would make a mockery of the uniformity which Congress said was necessary in adopting the preemption provision of the National Safety Act.

Also relevant is FMVSS No. 121, Air Brake Systems (49 CFR S 571.121). This standard "establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems." Its stated purpose "is to insure safe braking performance under normal and emergency conditions." Standard 121 clearly is a comprehensive set of requirements encompassing every aspect of performance of air brake systems. Section 5.1.4, Section 5.1.5, and Section 5.1.6 provide requirements for gauges and warning signals. It would be anomalous indeed if various states were now permitted to require additional warning devices to be added to the system.

General Motors Corporation, a member of MVMA, has informed MVMA of a determination of preemption that was made on May 2, 1975, by Mr. James Schultz, then Chief Counsel of the NHTSA, in a letter to Mr. Frazer F. Hilder, General Counsel of General Motors Corporation. General Motors, in its letter of March 21, 1975, questioned the supplemental air brake performance requirements of the Massachusetts and New Jersey Departments of Public Utilities and indicated that those requirements were not identical to FMVSS No. 121 requirements.

Briefly, the Massachusetts statute and regulations required that all braking systems be constructed and designed to permit release by the operator from the normal operating position. Although FMVSS No. 121 requires the parking brake system to be operable after failure of both the service and emergency brake systems (@ 5.7.2.2), it does not expressly address the issue of how release of the parking brake should be made.

The New Jersey "autobus" regulation required an automatic emergency brake system as contrasted to the optional automatic or modulated system permitted in S5.7 of FMVSS No. 121. In addition, the New Jersey stopping distances for service and emergency brakes were not identical to the requirements of FMVSS No. 121.

In his May 2, 1975 answer to General Motors' request for a determination of preemption, Mr. Schultz stated in part as follows:

"Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive state brake requirement than that specified in Standard 121 is voided by @103(d) since the Federal Standard is intended to cover all aspects of brake performance. [Emphasis supplied.]"

In the course of extensive rulemaking for the development of Standards 105 and 121, the NHTSA has made its intention clear that those standards cover every aspect of braking performance on the vehicles to which they apply. In view of that expressed intention, a recent decision of the United States District Court for the Eastern District of California is germane. The case is Motorcycle Industry Council, Inc. et al v. Younger, et al No. CIV. S74-126, decided September 23, 1974. The Court reviewed a California statute requiring that motorcycles be wired so that headlamps would be lit whenever engines were running. The Court held that the statute related to the same "aspect of performance" as does FMVSS 108 and therefore was preempted.

In your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning the preemptive effect of FMVSS No. 108 upon that California statute you stated as follows:

"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 supplied.]

In light of the legislative history, and the administrative and judicial interpretations of Section 103(d) of the Safety Act, Standards 105 and 121 appear clearly to be comprehensive and exclusive requirements covering all aspects of hydraulic and air brake system performance. The omission from those standards of an express requirement for an audible or visual wear signalling device does not permit a State to impose such a requirement.

MVMA urges that the NHTSA promptly publish a statement that state adoption and enforcement of the VESC's brake wear warning regulation is preempted by Federal standards.

We appreciate your consideration of this request.

Thomas H. Hanna

CC: RICHARD B. DYSON; FRANK A. BERNDT

ID: 0649

Mr. Jeffrey Echt
President, Saline Electronics, Inc.
13379 Michael Road
Highland, IL 62249

Dear Mr. Echt:

This replies to your letter of January 12, 1995, with respect to Federal requirements for stop lamps as they affect a stop lamp system developed by Saline Electronics.

As you describe the system, "during and after episodes of high, braking-induced deceleration, the system flashes the stop lamps it controls on and off." The stop lamps could either be the original equipment lamps, or one or more supplementary ones.

You have asked the following questions, based upon your understanding of the letter sent by this Office to the Virginia Transportation Research Council ("Virginia") on July 30, 1993:

"1. May states specifically permit (by statute or regulation) the use of deceleration warning systems which are neither original equipment nor replacements for original equipment? For example, may states specifically permit the use of an aftermarket deceleration warning system which a) permits all original equipment stop lamps required by FMVSS No. 108 to operate in a normal steady burning mode, and b) flashes one aftermarket center-mounted stop lamp or two side-mounted stop lamps, on vehicles not required to be so equipped?"

A State may enact a statute or regulation that specifically permits the use of deceleration warning systems that are neither original equipment nor replacements for original equipment if these systems are permissible as original equipment under FMVSS No. 108. As we informed Virginia, a deceleration warning system that is not permissible as original equipment under FMVSS No. 108 would also not be permissible as an aftermarket system because its installation by a person other than the vehicle owner would be in violation of 15 U.S.C. 1397(b)(2) (now recodified as 49 U.S.C.

30122(b)). This section prohibits manufacturers, dealers, distributors and motor vehicle repair businesses from knowingly making inoperative any part of a device installed on a motor vehicle in accordance with a Federal motor vehicle safety standard.

After careful review, it is our opinion that the system you describe is indirectly prohibited by two paragraphs of FMVSS No. 108. Because paragraph S5.5.10(d) of FMVSS No. 108 requires original equipment stop lamps to be steady burning in use, the addition of flashing aftermarket stop lamps make the original equipment stop lamps inoperative within the meaning of the prohibition because of the potential of a flashing lamp for detracting from the full effectiveness of the steady burning original equipment stop lamp signal by drawing an observer's attention away from it. A flashing aftermarket stop lamp also has the potential for confusion with the hazard warning system, whether the original equipment system operates through red or amber lamps.

The second paragraph of FMVSS No. 108 that would prohibit installation of your system as original equipment is S5.1.3. This paragraph prohibits the installation of supplementary lighting equipment that impairs the effectiveness of original lighting equipment.

In summary, 49 U.S.C. 30122(b) effectively prohibits a State from enacting a law permitting the use of your system, unless that system is designed to be installed by the vehicle owner. However, a State may permit the use of any aftermarket deceleration warning system that is allowable under FMVSS No. 108.

"2. In the absence of state regulation of flashing deceleration warning systems, is it lawful for individuals, states or municipalities to install such systems on their vehicles, provided they do not alter the steady burning operation of the original equipment stop lamps required by FMVSS No. 108? For example, may mass transit districts operate buses with flashing deceleration warning lamps, if the systems are installed by their own mechanics and the steady burning operation of the original equipment stop lamps is not altered? May individuals install such equipment on their own vehicles?"

"3. May individuals, states or municipalities, who are not manufacturers, distributors or motor vehicle repairs businesses, lawfully install flashing deceleration warning systems which would prevent the original equipment stop lamps from steadily burning during and after episodes of high, braking-induced deceleration? For example, may a mass transit district install a deceleration warning system which would flash some or all of the original equipment stop lamps during and after rapid deceleration due to hard braking, if the system were installed by its own mechanics?"

The answer to all these questions is yes. As noted under Question 1, Sec. 30122(b)(1) does not prohibit vehicle owners or their employees from installing aftermarket equipment such as flashing lamps that may "make inoperative" (in the sense discussed above) equipment that is required by FMVSS No. 108. In Question 2, the inoperability is created by an indirect effect upon the required lighting equipment, while in Question 3, the required equipment itself as well is made to operate in a manner different than prescribed by FMVSS No. 108. But the answer is the same under Sec. 30122(b)(1) in either case.

Sincerely,

Philip R. Recht Chief Counsel

ref:l08 d:3/2/95

ID: nht95-1.85

TYPE: INTERPRETATION-NHTSA

DATE: March 2, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Jeffrey Echt -- President, Saline Electronics, Inc.

TITLE: None

ATTACHMT: ATTACHED TO 1/12/95 LETTER FROM JEFFREY ECHT TO NHTSA CHIEF COUNSEL (OCC 10649)

TEXT: This replies to your letter of January 12, 1995, with respect to Federal requirements for stop lamps as they affect a stop lamp system developed by Saline Electronics.

As you describe the system, "during and after episodes of high, braking-induced deceleration, the system flashes the stop lamps it controls on and off." The stop lamps could either be the original equipment lamps, or one or more supplementary ones.

You have asked the following questions, based upon your understanding of the letter sent by this Office to the Virginia Transportation Research Council ("Virginia") on July 30, 1993:

"1. May states specifically permit (by statute or regulation) the use of deceleration warning systems which are neither original equipment nor replacements for original equipment? For example, may states specifically permit the use of an aftermarket de celeration warning system which a) permits all original equipment stop lamps required by FMVSS No. 108 to operate in a normal steady burning mode, and b) flashes one aftermarket center-mounted stop lamp or two side-mounted stop lamps, on vehicles not req uired to be so equipped?"

A State may enact a statute or regulation that specifically permits the use of deceleration warning systems that are neither original equipment nor replacements for original equipment if these systems are permissible as original equipment under FMVSS No. 108. As we informed Virginia, a deceleration warning system that is not permissible as original equipment under FMVSS No. 108 would also not be permissible as an aftermarket system because its installation by a person other than the vehicle owner would be in violation of 15 U.S.C. 1397(b)(2) (now recodified as 49 U.S.C. 30122(b)). This section prohibits manufacturers, dealers, distributors and motor vehicle repair businesses from knowingly making inoperative any part of a device installed on a motor vehicle in accordance with a Federal motor vehicle safety standard.

After careful review, it is our opinion that the system you describe is indirectly prohibited by two paragraphs of FMVSS No. 108. Because paragraph S5.5.10(d) of FMVSS No. 108 requires original equipment stop lamps to be steady burning in use, the addit ion of flashing aftermarket stop lamps make the original equipment stop lamps inoperative within the meaning of the prohibition because of the potential of a flashing lamp for detracting from the full effectiveness of the steady burning original equipmen t stop lamp signal by drawing an observer's attention away from it. A flashing aftermarket stop lamp also has the potential for confusion with the hazard warning system, whether the original equipment system operates through red or amber lamps.

The second paragraph of FMVSS No. 108 that would prohibit installation of your system as original equipment is S5.1.3. This paragraph prohibits the installation of supplementary lighting equipment that impairs the effectiveness of original lighting equi pment.

In summary, 49 U.S.C. 30122(b) effectively prohibits a State from enacting a law permitting the use of your system, unless that system is designed to be installed by the vehicle owner. However, a State may permit the use of any aftermarket deceleration warning system that is allowable under FMVSS No. 108.

"2. In the absence of state regulation of flashing deceleration warning systems, is it lawful for individuals, states or municipalities to install such systems on their vehicles, provided they do not alter the steady burning operation of the original eq uipment stop lamps required by FMVSS No. 108? For example, may mass transit districts operate buses with flashing deceleration warning lamps, if the systems are installed by their own mechanics and the steady burning operation of the original equipment stop lamps is not altered? May individuals install such equipment on their own vehicles?"

"3. May individuals, states or municipalities, who are not manufacturers, distributors or motor vehicle repairs businesses, lawfully install flashing deceleration warning systems which would prevent the original equipment stop lamps from steadily burnin g during and after episodes of high, braking-induced deceleration? For example, may a mass transit district install a deceleration warning system which would flash some or all of the original equipment stop lamps during and after rapid deceleration due to hard braking, if the system were installed by its own mechanics?"

The answer to all these questions is yes. As noted under Question 1, Sec. 30122(b)(1) does not prohibit vehicle owners or their employees from installing aftermarket equipment such as flashing lamps that may "make inoperative" (in the sense discussed ab ove) equipment that is required by FMVSS No. 108. In Question 2, the inoperability is created by an indirect effect upon the required lighting equipment, while in Question 3, the required equipment itself as well is made to operate in a manner different than prescribed by FMVSS No. 108. But the answer is the same under Sec. 30122(b)(1) in either case.

ID: nht78-1.13

DATE: 03/23/78

FROM: AUTHOR UNAVAILABLE; E. T. Driver; NHTSA

TO: Nissan Motor Company

TITLE: FMVSS INTERPRETATION

TEXT: We refer to your letters of November 10 and December 2, 1977, to Mr. Joseph J. Levin, requesting an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 106-74 Brake Hoses. You inquired as to its applicability to the two anti-skid system hoses "A" and "B" in the diagram you enclosed.

The anti-skid actuator apparently modulates the pressure to the rear brakes upon command from the computer module. You stated that the failure of the actuator would not prevent the brake system from meeting the requirements of FMVSS No. 105-75.

You also stated that the subject hoses carry mineral oil, and that such hoses might deteriorate if subjected to brake fluid. You further stated that standard hydraulic brake hoses would deteriorate if used with the mineral oil which is used in the power steering system.

In the preamble to Notice 11, Docket 1-5, published June 24, 1974, (39 FR 24012) all power steering type hoses that connected power steering pumps with accumulators were exempted from coverage by the standard. Hoses connecting accumulators with brake power boosters were also exempted if redundant boosters were provided. The National Highway Traffic Safety Administration (NHTSA) has reviewed this latter interpretation and determined that all power steering type hoses should be exempted from FMVSS No. 106-74, until appropriate requirements for such hoses are established.

After consideration of the information and the drawings in your letters, we have concluded that hose assemblies A and B connected to your anti-skid actuator are, in fact, power steering hose assemblies. Consequently those assemblies are exempt from the subject standard until suitable requirements for such assemblies are included therein.

Sincerely,

ATTACH.

November 10, 1977

Joseph J. Levin -- Office of the Chief Counsel, NHTSA

Dear Mr. Levin:

This letter is to ask your interpretation concerning FMVSS 106 - "brake hoses".

Attached is the schematic drawing of the brake system with the hydraulic anti-skid unit. Do hoses A and B in this drawing fall under the category of "brake hose" which is defined in S.4 of FMVSS 106? In other words, should those hoses meet FMVSS 106?

I look forward to hearing your reply to the above.

Very truly yours

NISSAN MOTOR CO., LTD.;

Tokio Iinuma -- Staff, Safety

Enclosure

December 2, 1977

Joseph J. Levin -- Office of the Chief Counsel; NHTSA

Dear Mr. Levin:

I asked for your interpretation with regard to FMVSS 106 - "brake hoses" in my letter of November 10, 1977.

I am afraid that my explanation concerning hoses used in the anti-skid unit was insufficient.

The following is the additional information necessary to make my explanation complete:

1. Even if the failure (ex: mineral oil leakage from hoses, inoperative of actuator or vane pump) occurs in the anti-skid unit, the vehicle is capable of meeting FMVSS 105 - "hydraulic brake systems".

2. Difference of material between hoses used in anti-skid unit (hose A, B and C in attachment) and hoses in ordinary brake system which is in compliance with FMVSS 106.

HOSES IN HOSES IN ORDINARY ANTI-SKID UNIT BRAKE SYSTEM outer rubber CR CR (or CR+NR) middle rubber NR NR inner rubber NBR SBR

(Graphics omitted)

3. Compatibility with mineral oil or brake fluid (DOT 3).

HOSES IN HOSES IN ORDINARY ANTI-SKID UNIT BRAKE SYSTEM mineral possibility of deterior- oil no problem ation of property and swelling at inner rubber brake possibility of fluid deterioration no problem (DOT 3) of property at inner rubber

Thank you for your attention to the above matter. I look forward to hearing your reply to my letter of November 10, 1977.

Very truly yours, NISSAN MOTOR CO., LTD.,

Tokoi Iinuma -- Staff, Safety

Enclosure

cc: Welfred M. Redler (NHTSA Office of crash avoidance)

Brake System with Anti-Skid Unit

(Graphics omitted)

NOTE: Hoses A, B and C does not make contact with brake fluid (DOT 3) because the flows of mineral oil for the power steering unit and brake fluid for brake systems are completely separate.

ID: 571.226--modified roof--RVIA--15-006086