ID: aiam4043

Dear Mr. Hagie: This responds to your April 11, 1986, letter to this office requestin an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 106, *Brake Hoses*. We regret the delay in our response; You asked whether brake hoses that comply with all requirements o Standard No. 106 except the whip resistance test of S5.3.3 may be used in locations not subject to movement during vehicle operation. As explained below, the answer to your question is no.; As you know, Standard No. 106 defines 'brake hose' as 'a flexibl conduit, other than a vacuum tubing connector, manufactured for use in a brake system to transmit or contain the fluid pressure or vacuum used to apply force to a vehicle's brakes.' Manufacturers of brake hoses must certify that their hoses comply with all applicable requirements of the standard. From your letter, it appears that while you agree that the equipment you manufacture are brake hoses, you believe that they should not be subject to whip resistance test because your hoses would not be used between articulating parts.; We do not agree that the whip test does not apply to brake hoses use between non- articulating parts. No provision has been made in the standard or in the whip resistance test of S5.3.3 to exclude hoses manufactured for use between non-moving parts. In contrast, the standard has set separate requirements under certain tests for brake hoses used between articulating parts when it is appropriate to distinguish between articulating and non-articulating applications (see, for example, the tensile strength test of S7.3.10 for air brake hose assemblies).; Further, we believe that there is a safety need to test brake hose intended for non-articulating applications for fatigue resistance, since they are also subject to vibration, bending and articulating stress while the motor vehicle is being operated or repaired.; If you have further questions, please let me know. Sincerely, Erika Z. Jones, Chief Counsel

ID: aiam5275

"Dear Ms. Barbee: This responds to your letter to me of October 14 1993, and your telephone conversation with Walter Myers of my staff on October 22, 1993. You stated in your letter that you are the Head Start Sales Coordinator for Thomas Built Buses, Inc., and in that capacity you have found that many Head Start agencies are using conventional vans to transport Head Start students to and from their programs. You stated that when you asked the directors of the agencies why they did not use vehicles that comply with Federal motor vehicle safety standards (FMVSS) for school buses, their usual answer was 'because we have not been told otherwise.' You then asked whether this practice is illegal and if so, what your organization can do to rectify the situation. As Mr. Myers explained in your telephone conversation, this agency has repeatedly stated that Head Start facilities are preprimary schools. Therefore, new buses sold to Head Start centers for use in transporting Head Start participants to and from school must comply with all Federal motor vehicle safety standards applicable to school buses. However, Federal law does not require Head Start facilities to use complying school buses or any other particular vehicles. The individual states, not the Federal government, have authority over the use of vehicles. As promised by Mr. Myers, please find enclosed interpretation letters previously issued by us on this issue, as follows: to Hon. Paul David Wellstone, U.S. Senate, dated Jan. 26, 1993, to Mr. Chuck Anderson, dated Aug. 21, 1992, and to Mr. Charles Pekow, dated Sept. 27, 1985. I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosures ";

ID: nht79-3.30

DATE: 01/26/79

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NSTSA

TO: Blue Bird Body Company

TITLE: FMVSS INTERPRETATION

TEXT:

FMVSS INTERPRETATION Jan. 26, 1979 NOA-30

Mr. W. G. Milby Manager, Engineering Services Blue Bird Body Company P. O. Box 937 Fort Valley, Georgia 31030

Dear Mr. Milby:

This responds to your recent letter asking for confirmation that hoses running to air pressure gauges would not be considered "brake hoses" that are subject to Federal Motor Vehicle Safety Standard No. 106-74. Mr. Fred Redler of the agency's Office of Vehicle Safety Standards apparently discussed this matter in a telephone conversation with one of your engineers.

Safety Standard No. 106-74 specifies performance requirements for brake hoses used in motor vehicles. That standard defines a brake hose as,

"a flexible conduit, other than a vacuum tubing connector, manufactured for use in a brake system to transmit or contain the fluid pressure or vacuum used to apply force to a vehicle's brakes."

If the hose in question is only connected to an air pressure gauge and does not transmit any fluid or pressure used to apply force to a braking system, it would not be considered a brake hose and would not be required to comply with Standard No. 106-74. This letter, therefore, confirms Mr. Redler's statements.

Sincerely,

Joseph J. Levin, Jr. Chief Counsel

November 30, 1978 Mr. Joseph J. Levin Chief Counsel National Highway Traffic Safety Administration Washington, D.C. 20590

Dear Mr. Levin:

This is to follow up a conversation between our Staff Engineer, Mr. Robert DuMond, and Mr. Fred Redler at NHTSA.

I am seeking confirmation of an interpretation given to Mr. DuMond by Mr. Redler relative to FMVSS 106-74, Brake Hoses and Fittings.

The question asked was whether FMVSS 106 applied to hoses running to air pressure gauges. Mr. Redler said that it did not because FMVSS 106 applies to brake hoses "...used to apply force to a vehicle's brakes." (Ref. S4). Would you please confirm this at your earliest possible convenience.

Thank you.

Very truly yours,

W. G. Milby Manager, Engineering Services

ID: nht94-1.44

TYPE: Interpretation-NHTSA

DATE: February 7, 1994

FROM: Jeffrey D. Shetler -- Manager of Government Relations, Kawasaki Motors Corp., U.S.A.

TO: Associate Administrator for Enforcement -- NHTSA

TITLE: Motorcycle Projector Beam Headlamps Interpretation of FMVSS 108

ATTACHMT: Attached to letter dated 5/6/94 from John Womack to Jeffrey D. Shetler (A42; Std. 108)

TEXT:

Kawasaki Motors Corp., U.S.A. is hereby requesting a interpretation from NHTSA regarding the application of a projector beam headlamp to a motorcycle and its compliance with FMVSS 571.108.

When reviewing FMVSS 108 we are not sure if our proposed application of a projector beam headlamp to a motorcycle will meet the specified requirements. Your response regarding the following questions would be greatly appreciated:

1. Table IV of FMVSS 108 specifies that if two (headlamps) are used they shall be symmetrically disposed about the vertical centerline.

Attached is a layout drawing which provides a general description of our proposed application of a projector beam headlamp. Our headlamp is not completely aligned symmetrically because the projector beam (lower beam) is located on the left side and the high beam is on the right side. However, the outer lens of the headlamp assembly is symmetrically positioned about the vertical centerline.

Question: Is our headlamp in compliance with the provision stated above?

2. Section S5.1.1.23 of FMVSS 108 indicates that instead of the headlamps specified by Table III, a motorcycle may be equipped with one half of any headlighting system specified in S7 which provides both a full upper beam and full lower beam, and where more than one lamp must be used, the lamp shall be mounted vertically, with the lower beam as high as practicable.

Question: Does this requirement mean our proposed projector beam shall be mounted on the upper half and the high beam shall be on the lower half when using one half of any headlighting system specified in S7? Or, is our proposed layout in the attachmen t acceptable?

Thank you in advance for your timely response to our questions. If further information is required, I can be reached at (714) 770-0400 ext. 2456.

ID: nht72-2.19

DATE: 08/11/72

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

TO: Imperial Fire Apparatus

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of July 21 to Mr. (Illegible Words) Truck Body and Equipment Association, Inc., concerning interpretations of FMVSS No. 108 requirements relating to fire trucks.

The answers to the questions you asked are as follows:

I. Flashing Identification, Clearance, and (Illegible Word) Lights. (Illegible Word) calls for all identification clearance, and (Illegible Words) to be wired into a motor driven (Illegible Word) with a selector switch for "steady on" or "flashing". Is this procedure allowable?

(Illegible Word). Flashing side (Illegible Words), but not clearance and identification lamps, are permitted by FMVSS No. 108.

II. Flashing Lights.

Customer calls for a second set of identification and clearance lamps ((Illegible Words) and power) to be mounted adjacent to the existing lighting. This second set of lights is to be wired into a motor driven flasher with a separate control switch located in the cab. Is this procedure allowable?

Yes. The additional or supplemental lamps are permitted by FMVSS No. 108, and flashing these additional lamps is (Illegible Word) in non-compliance with the standard. Regulations of individual states may, however, be applicable to this arrangement.

III. Battery Disconnect Switch.

On many trucks, the battery is wired into a master switch whereby the battery can be completely isolated from the electrical system. When this switch is in the "off" position, all light switches including identification, clearance, and four (4) way hazard flashers become in-operative. With the vehicle's engine shut down, the four (4) way hazard signals may only be activated by turning (Illegible Word) to "on" and turning four (4) way hazard switch to "on". Is this installation in compliance with SAE (Illegible Words) 4.21. If there are lights that must be activated by a single driver action, could you please note them.

This installation is in compliance with the requirements of FMVSS No. 108, providing the master switch is separate from the ignition switch and the hazard warning signal lamps will flash with the master switch on and the ignition switch off.

ID: GRACIA.LTR

Arthur H. Bryant, Esq.
Executive Director
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, D.C. 20036

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Bryant:

This is in response to your letter requesting that the United States file an amicus curiae brief with the Seventh Circuit in the above-referenced case, in which the District Court ruled that the plaintiff's claims are preempted by Federal law.

Although the National Highway Traffic Safety Administration (NHTSA) disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief. A brief discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, NHTSA has consistently taken the view that, as a general matter, Federal motor vehicle safety standards (FMVSS) issued under 49 U.S.C. Chapter 301 preempt state common law actions only in very limited situations, which do not appear to apply here. Our views on this issue were most recently stated in the amicus curiae brief filed by the United States in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995).

To summarize, judgments under the common law can effectively create "standards" that would be expressly preempted by the "preemption clause" of Chapter 301, 49 U.S.C. 30103(b)(1),⁽¹⁾ if that clause stood alone. However, the "savings clause," 49 U.S.C. 30103(e),⁽²⁾ precludes a finding that suits seeking to recover damages on the basis of a manufacturer's failure to go beyond the requirements of a standard are expressly preempted. Moreover, such suits are impliedly preempted only in those relatively rare cases where the common law duty sought to be imposed on an auto manufacturer would create an actual conflict with a NHTSA safety standard, either because it would be impossible to comply with both state and Federal requirements or because the judgment would "stand as an obstacle to" or "frustrate the purpose of" federal law.

As we understand the facts in the Gracia case, the plaintiff was injured when she was "thrown through the windshield" of a model year 1986 Volvo truck that had a gross vehicle weight rating (GVWR) of more than 10,000 pounds and which was a "forward control vehicle." One of NHTSA's safety standards, FMVSS No. 212, "Windshield mounting," 49 CFR 571.212, imposes performance requirements for windshields of certain vehicles. The standard applies to passenger cars and to trucks with a GVWR of 10,000 pounds or less. It does not apply to certain types of trucks, including "forward control vehicles," even if they have a GVWR of less than 10,000 pounds.

The District Court concluded that NHTSA's decision to exclude forward control vehicles from the reach of the standard preempted plaintiff's product liability action. In our view, this conclusion is both factually and legally incorrect.

First, the focus by the parties and the court on the agency's rationale for excluding "forward control" trucks with a GVWR of less than 10,000 pounds from the reach of FMVSS No. 212 is misguided, since the GVWR of the vehicle involved in this crash was greater than 10,000 pounds. As with almost all of its safety standards, NHTSA did not explicitly consider applying FMVSS No. 212 to heavy trucks, regardless of whether they were forward control vehicles.

More generally, although we agree that a NHTSA decision not to regulate can preempt state common law actions, see Arkansas Elec. Co-op Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983), it will do so only where the intent to preempt is "clear and manifest." See Toy Mfrs. Of America, Inc. v. Blumenthal, 986 F.2d 615, 622-623 (2d Cir. 1992), citing Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707, 718 (1985). Here, there was no such intent, and none was indicated in any of the documents issued by the agency during its consideration of this standard.⁽³⁾

The regulatory materials quoted in the District Court's opinion indicate that the primary basis for NHTSA's exclusion of forward control vehicles (with a GVWR of less than 10,000 pounds) was a concern that it would not be "practicable" for such vehicles to comply with the existing standard.⁽⁴⁾ In no way did this reflect a NHTSA conclusion that efforts by maufacturers of forward control vehicles to reduce the possibility of ejections through the windshield (either by satisfying the performance requirements of the standard or through other means) would have an adverse impact on safety. Rather, it reflected a NHTSA determination that applying FMVSS No. 212 to such vehicles would not be appropriate in light of the statutory criteria for FMVSSs set out in Chapter 301.

A decision not to regulate on this basis does not in itself "preempt the field." In other words, while the exclusion of certain vehicles from the reach of FMVSS No. 212 relieves the manufacturers of those vehicles from any duties with respect to windshield retention under Chapter 301, it does not immunize those manufacturers from a duty of care that might be imposed under state law.⁽⁵⁾

Thus, as noted above, we believe that the District Court's opinion is incorrect. However, to our knowledge, this is the first case in which a court has improperly concluded that a NHTSA decision not to regulate an aspect of performance of certain vehicles preempts a state common law action seeking damages based on an alleged failure with respect to that aspect of performance. Therefore, in keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case. In the unlikely event that this erroneous view of the scope of "negative" Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

Thank you for bringing this matter to our attention.

Sincerely,

John Womack

Acting Chief Counsel

cc: Wayne F. Plaza, Esq.

Bruce R. Pfaff, Esq.

ref: 103(d)#108(k)

NCC-10:KWeinstein:August 9, 1996; revised:August 16, 1996

Printed: August 26, 1996 (cyb)

1. "When a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to the standard prescribed under this chapter. . . ."

2. "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."

3. Although we cannot anticipate all possibilities, it is likely that NHTSA would "negatively" preempt state law only if it concluded that a specific item or design feature would have an adverse effect on motor vehicle safety. For example, if NHTSA had decided that headrests above a certain size should not be required because they would interfere with driver visibility, a claim by a plaintiff that a manufacurer's failure to equip a vehicle with a larger headrest led to neck injuries would be preempted, even in the absence of an explicit ban on such headrests.

4. Pursuant to 49 U.S.C. 30111(a), each FMVSS "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms."

5. NHTSA takes no position on whether the windshield retention system in this particular vehicle was "unreasonably dangerous" or what duty of care a state might reasonably impose through its common law. (Presumably, NHTSA's views on the technological options avilable to manufacturers of forward control vehicles would be considered by courts and juries considering those issues.) Similarly, NHTSA takes no position on whether this crash led to a "foreseeable impact," as alleged by plaintiff, or on the relevance, if any, of the facts that the plaintiff apparently was not seated in a designated seating position and apparently was not wearing a safety belt.

ID: 11644WKM

Mr. Dennis L. O'Connor
Manager, Government & Customer Compliance
The Goodyear Tire & Rubber Company
Akron, OH 44316-0001

Dear Mr. O'Connor:

This responds to your letter addressed to Walter Myers of my staff, in which you requested this agency's interpretation of what constitutes a "new" tire for purposes of applying the provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 109, New pneumatic tires and No. 119, New pneumatic tires for vehicles other than passenger cars.

Your question relates to section 30112 of Title 49, United States Code, which provides, in paragraph (a), that no person may manufacture for sale, sell, offer for sale, introduce into interstate commerce, or import for sale any motor vehicle or item of motor vehicle equipment on or after the effective date of any FMVSS that does not comply with that standard and is so certified. Section 30112(b) provides that this requirement does not apply, however, to a vehicle or item of equipment after the first purchase of that product in good faith other than for resale. Section 30112(a) applies, therefore, to the sale of Anew@ motor vehicles and Anew@ items of motor vehicle equipment, as opposed to used vehicles and equipment items.

FMVSS Nos. 109 and 119 specify performance and labeling requirements applicable to new pneumatic tires for use on passenger cars and motor vehicles other than passenger cars, respectively. Standard Nos. 110 and 120 require that new motor vehicles be equipped with tires that meet either FMVSS No. 109 or FMVSS No. 119.

Turning now to the question of what is meant by a "new" tire as opposed to a "used" tire, a vehicle or item of equipment is new from the time of its manufacture until its first retail sale. The agency considers the point at which the vehicle or item of equipment is delivered to the customer to be a critical factor in determining whether and when an item has been purchased. Thus, it is at the point of delivery of the item to the retail purchaser that a vehicle or item of equipment ceases to be "new" and therefore subject to Federal law and the FMVSSs, and becomes "used" and subject to state law and regulations.

The agency considers a motor vehicle to be the sum of its parts, including the tires mounted on the vehicle and its spare tire, if any. Accordingly, after a vehicle is delivered to its first retail purchaser, every component on and in that vehicle, including all its tires, becomes "used" for the purposes of the FMVSSs.

I hope this information is helpful to you. Should you have any further questions or need additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

ref:109#119 d:4/18/96

ID: nht75-2.32

DATE: 12/29/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Nissan Motor Co., Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your November 20, 1975, letter concerning the use of replacement parts which may affect a vehicle's compliance with a Federal motor vehicle safety standard that is applicable only to vehicles.

You have presented the example of a vehicle that, if equipped with a door that does not have guard bars, would not be in compliance with Federal Motor Vehicle Safety Standard No. 214. Because that standard is applicable only to passenger cars, there is no prohibition on the mere sale of such doors for use as replacement equipment. However, Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended ("the Act"), specifies that

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard, unless such manufacturer, distributor, dealer, or repair business reasonably believes that such vehicle or item of equipment 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. For purposes of this paragraph, the term "motor vehicle repair business" means any person who holds himself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation.

Therefore, the installation of a door that does not have guard bars is a violation of the Act, if that installation is performed by a manufacturer, distributor, dealer, or motor vehicle repair business. Installation of such a door by one of your dealers, for example, is not permitted.

Your letter also asked whether the use of such doors would be permitted in the future, in the event that Standard No. 214 is relaxed in a way that would permit the use of such doors on a new vehicle. It is the opinion of this agency that replacement of a door, or any other safety system installed in compliance with a Federal motor vehicle safety standard, with a system mandated by a later safety standard (even if the later standard imposes a less stringent level of performance) would not violate Section 108(a)(2)(A) of the Act, as amended.

SINCERELY,

NISSAN MOTOR CO., LTD.

November 20, 1975

Frank Berndt Office of Chief Council National Highway Traffic Safety Administration This is to ask your interpretation regarding the requirement for replacement parts in the case of FMVSS's which are applied to only the vehicle, such a FMVSS 105, 114, 208, 214, 215 and so on.

1) Since the above mentioned FMVSS's require that the vehicle must be in compliance with them at only the time of manufacture, may we understand that there is no requirement for replacement parts of the vehicle after retail?

(example)

When we replace the door of 1974 model vehicle, may we use the door without guard bars as the replacement part? ( In this case, this vehicle does not meet FMVSS 214 after replacement)

If the answer is no, is it due to the fact that there is Motor Vehicle Safety Act Sec. 108(a) (2) (A)?

2) When the requirement is relaxed, may we use the replacement parts which do not meet the requrement before relaxation?

(example)

If in the future, FMVSS 214 is relaxed and we need not use the door with guard bars as a result of relaxation, may we use the door without guard bars as the replacement part of the vehicle manufactured before relaxation?

Thank you for your attention to the above question. We look forward to hearing your interpretation of the above in the near future.

Tokio Iinuma Staff, Safety

ID: nht94-6.50

DATE: April 7, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Robert Matulich (Seattle, WA)

TITLE: None

ATTACHMT: Attached to letter dated 12/15/93 (est) from Robert Matulich to Office of Chief Council, NHTSA (OCC 9449)

TEXT:

This responds to your letter requesting information about Federal requirements applicable to your product. According to promotional literature that accompanied your letter, your "Clear Vu Mirror" is an attachment to exterior mirrors that clears raindrops, dust, and mist, thus making a mirror "virtually self-cleaning." I am pleased to explain the applicability of our regulations to your product.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, the National Traffic and Motor Vehicle Safety Act ("Safety Act") establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable FMVSSs.

NHTSA currently has no FMVSSs that directly apply to the product you plan to manufacture. NHTSA issued an FMVSS for vehicle rearview mirrors (FMVSS No. 111), but the standard applies to new vehicles, and not to aftermarket mirror products. If your product were manufactured and sold as part of a new vehicle, the vehicle would have to be certified as complying with all applicable standards, including Standard No. 111. The standard sets field of view requirements for new motor vehicles, and your product would have to be mounted on a new vehicle such that it does not block the field of view required by FMVSS No. 111. However, since Standard No. 111 applies only to new vehicles, it does not apply to your product.

I note, however, that there are other Federal requirements that indirectly affect you and your product. Under the Safety Act, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in SS151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to S108(a)(2)(A) of the Safety Act, which 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 ...." It is conceivable that your product, when placed on a vehicle's exterior mirror, could "render

inoperative" the vehicle's ability to comply with FMVSS No. 111. Persons in the aforementioned categories cannot install your product if it blocks the field-of-view required by FMVSS No. 111, or otherwise caused the vehicle to no longer comply with Standard No. 111.

The "render inoperative" prohibition of S108(a)(2)(A) does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment. Thus, if your product were placed on an exterior mirror by the vehicle owner, the render inoperative provision would not apply. Nevertheless, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles, including the safety of their rearview mirrors.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

ID: nht94-2.23

TYPE: Interpretation-NHTSA

DATE: April 7, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Robert Matulich (Seattle, WA)

TITLE: None

ATTACHMT: Attached to letter dated 12/15/93 (est) from Robert Matulich to Office of Chief Council, NHTSA (OCC 9449)

TEXT:

This responds to your letter requesting information about Federal requirements applicable to your product. According to promotional literature that accompanied your letter, your "Clear Vu Mirror" is an attachment to exterior mirrors that clears raindrop s, dust, and mist, thus making a mirror "virtually self-cleaning." I am pleased to explain the applicability of our regulations to your product.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipm ent. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, the National Traffic and Motor Vehicle Safety Act ("Safety Act") establishes a "self-certification" process under which each manufacturer is responsible for c ertifying that its products meet all applicable FMVSSs.

NHTSA currently has no FMVSSs that directly apply to the product you plan to manufacture. NHTSA issued an FMVSS for vehicle rearview mirrors (FMVSS No. 111), but the standard applies to new vehicles, and not to aftermarket mirror products. If your prod uct were manufactured and sold as part of a new vehicle, the vehicle would have to be certified as complying with all applicable standards, including Standard No. 111. The standard sets field of view requirements for new motor vehicles, and your product would have to be mounted on a new vehicle such that it does not block the field of view required by FMVSS No. 111. However, since Standard No. 111 applies only to new vehicles, it does not apply to your product.

I note, however, that there are other Federal requirements that indirectly affect you and your product. Under the Safety Act, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are sub ject to the requirements in SS151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determi nes that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to S108(a)(2)(A) of the Safety Act, which states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperati ve ... 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 ...." It is conceivable that your product, when placed on a vehicle's ext erior mirror, could "render

inoperative" the vehicle's ability to comply with FMVSS No. 111. Persons in the aforementioned categories cannot install your product if it blocks the field-of-view required by FMVSS No. 111, or otherwise caused the vehicle to no longer comply with Stan dard No. 111.

The "render inoperative" prohibition of S108(a)(2)(A) does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment. Thus, if your product were placed on an exterior mirror by the vehicle owner, the render inoperative provision would not apply. Nevertheless, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles, including the safety of their rearview mirrors.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.