ID: 8210a

Mr. Thomas L. Wright
Coordinator, Technical Support Unit
State of New Jersey
Department of Law and Public Safety
Division of Motor Vehicles
Trenton, NJ 08666

Dear Mr. Wright:

This responds to your letter to Patrick Boyd of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Standards, concerning window tinting. Your letter has been referred to my office for reply.

Your questions relate to a January 22, 1992 (57 FR 2496) notice of proposed rulemaking (NPRM) on the tinting requirements of Safety Standard No. 205, "Glazing Materials." You ask about the status of the NPRM. The agency received a large number of comments on this rulemaking. We have reviewed the comments and are analyzing the issues raised in this rulemaking.

You also ask about a statement in the NPRM about Federal preemption of state window tinting laws. You ask whether Federal law preempts a state law that permits add-on window tinting material for medical or aesthetic reasons.

As explained below, the answer is no, provided that the state law regulates conduct other than that regulated by Federal law. Your question was addressed in the NPRM's discussion of the Federalism implications of the proposed rule (p. 2507).

By way of background, NHTSA issued Standard 205 under the authority of the National Traffic and Motor Vehicle Safety Act. The standard currently imposes a minimum level of light transmittance of 70% in all areas requisite for driving visibility (which includes all windows on passenger cars). The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash.

Section 103(d) of the Safety Act provides that:

Whenever a Federal motor vehicle safety standard ... 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.

Whether state law is preempted under 103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the manufacture of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to allow the manufacture or sale of glazing materials or new vehicles containing glazing material that did not meet the specifications of Standard 205.

Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. Section 108(a)(2)(A) of the Safety Act 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.

The effect of this is to impose limits on the tinting practices of businesses listed in 108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to allow modifications violating Standard 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

Because Federal safety standards regulate the manufacture and sale of new motor vehicles, state requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as they do not interfere with the achievement of the purposes of Federal law. Therefore, a state could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard. However, the state cannot legitimize conduct - the rendering inoperative of glazing by commercial businesses installing window tinting - that is illegal under Federal law.

I have enclosed a copy of the Report to Congress on Tinting of Motor Vehicle Windows which you requested. 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.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:205 d:3/11/93

ID: 8223

Mr. Donald L. Anglin
706 Rose Hill Drive
Charlottesville, VA 22903

Dear Mr. Anglin:

This responds to your letter in which you asked whether removing the self-adjusters on a motor vehicle's drum brakes constitutes a violation of the "anti-tampering" provisions of several Federal laws, including the National Traffic and Motor Vehicle Safety Act. I am pleased to have this opportunity to explain this agency's regulations. You will need to contact the Environmental Protection Agency for an interpretation of the Clean Air Act.

By way of background information, the National Traffic and Motor Vehicle Safety Act ("Safety Act") requires this agency, the National Highway Traffic Safety Administration (NHTSA), to promulgate motor vehicle safety standards that specify performance requirements for new motor vehicles and items of motor vehicle equipment. Among the standards issued by NHTSA are Standard No. 105, Hydraulic Brake Systems and Standard No. 121, Air Brake Systems. Standard No. 105 specifies requirements for hydraulic service brake and associated parking brake systems, and applies to new passenger cars, multipurpose passenger vehicles, trucks, and buses equipped with hydraulic brake systems. Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems.

NHTSA recently amended these standards to require vehicles to be equipped with automatic brake adjusters. (57 FR 47793, October 20, 1992) This rule takes effect on October 20, 1993 for vehicles equipped with hydraulic brakes and on October 20, 1994 for vehicles equipped with air brakes. Until these effective dates, a vehicle is not required to be equipped with automatic brake adjusters.

You specifically asked about the agency's "anti-tampering" provisions. While the agency has no provision called this, the Safety Act does include a provision known as the "rendering inoperative" provision which is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits manufacturers, distributors, dealers, and repair shops from knowingly "rendering inoperative," in whole or in part, any device or element of design installed on or in a vehicle in compliance with an applicable safety standard.

For vehicles manufactured on or after the effective date of the new requirements for automatic adjusters, manufacturers, distributors, dealers and repair businesses will be prohibited by section 108(a)(2)(A) from rendering the devices inoperative. For vehicles manufactured before that time, such an entity should ensure that removal of the adjusters does not otherwise render inoperative the compliance of the vehicle with a safety standard.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:105#121 d:4/19/93

ID: 8228a

Mr. Ken Liebscher
President/Director
Electric Car Company
P.O. Box 618
Everson, WA 98247

Dear Mr. Liebscher:

We have reviewed your application of January 16, 1995, for temporary exemption of the M1-6 electric passenger car from six Federal Motor Vehicle Safety Standards, on the basis that compliance would cause Electric Car Company ("Electric Car") substantial economic hardship. We need some additional information before we are able to consider the application further.

A hardship applicant must provide corporate balance sheets and income statements for the three fiscal years preceding the filing of the application. You have filed statements for E.T.C. Industries and only for two years, those ending December 31, 1992, and December 31, 1993. This is acceptable since your submission indicates that E.T.C. Industries (apparently a Canadian corporation) is the parent of Electric Car (a Nevada corporation incorporated on November 24, 1993), and that "the consolidated financial statements [that you have provided us] include the accounts of Electric Car . . . ." We would like to have balance sheets and income statements for Electric Car for the year ending December 31, 1994, but if these are not yet available, we would be willing to accept statements for E.T.C. Industries (or its predecessor Bradsue Resources, Ltd.) for the year ending December 31, 1991. If the information reflected in the financial statements is given in Canadian dollars, please provide a key indicating the value in American dollars on December 31 of each year for which the information is provided.

In order to grant a hardship application, the Administrator must find that an applicant has tried to comply in good faith with each standard for which exemption is requested. Your application contains no information upon which the Administrator could make such a finding with respect to any of the six standards for which you seek exemption. In spite of your confidence about the MI-6's performance in a 30 mph barrier impact, the fact that the MI-6 uses equipment installed in motor vehicles that are certified as meeting the Federal motor vehicle safety standards does not mean that the MI-6 will meet any of the six standards with the equipment installed. We therefore suggest that you supplement the application with information demonstrating that you have examined each of the six standards in some detail, and have made a study of possible compliance problems and possible solutions to them. It is permissible to ask to be excused from only a portion of a standard, and you may find, after studying your problems, that you will be able to narrow your requests for exemption from Standards No. 201 and 208. We assume with respect to the latter that you are concerned with the airbag requirements. Although your letter speaks of "restraint systems", we would like your further identification of them as two-point (lap belt) or three-point (lap and shoulder belt) systems.

Although you appear to be a manufacturer in the start- up stage and one whose total motor vehicle production in the year preceding the filing of the application was far less than 10,000, you have omitted to provide the number of motor vehicles that you produced in 1994 which is information that we require. Please do so in your response to this letter.

When we have received this information, we shall prepare a notice requesting public comment which will appear in the Federal Register. We shall notify you when the Administrator has made a decision. We expect this to be three to four months after we have received your further submission. If you have any questions on our requirements, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,

Philip R. Recht Chief Counsel ref:555 d:2/13/95

ID: 8234

Mr. Donald Ray McCray
620694, Darrington Unit
Rt. 3
P.O. Box 59
Rosharon, TX 77583

Dear Mr. McCray:

This responds to your letter of November 16, 1992 to former Secretary Card. Your letter has been referred to my office for reply, because the National Highway Traffic Safety Administration (NHTSA) administers Federal regulations for motor vehicle safety.

Your letter expresses concern about the buses that the Texas Department of Criminal Justice (DCJ) uses to transport inmates. You believe the buses are unsafe and operated in violation of Federal law. As explained below, it appears the DCJ did not violate any NHTSA regulation.

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., the Safety Act) authorizes this agency to issue Federal motor vehicle safety standards (FMVSS's) that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Under the Safety Act, each person selling a new bus must ensure that the bus complies with the FMVSS's for buses. NHTSA's requirements for vehicle seats are set forth in FMVSS No. 207, Seating Systems. However, that standard does not require seat covers or pads for any bus seat. Also, there is no FMVSS that requires buses to be heated.

NHTSA does not regulate the use of motor vehicles, such as the speed at which the DCJ must operate the bus. Individual states, not the Federal government, have authority over the use of vehicles. Texas state officials would be best able to answer your concerns about the manner in which you were transported.

I hope you find this information helpful. If you have any other questions, please contact us.

Sincerely,

John Womack Acting Chief Counsel ref:207 d:2/9/93

ID: 8240a

Trooper Bob Dittert
Texas Department of Public Safety
10110 NW Freeway
Houston, TX 77092

Dear Mr. Dittert:

This responds to your inquiry about how the Federal Motor Vehicle Safety Standards affect State laws applicable to the same aspect of performance. You were particularly interested in our requirements for window tinting. I am pleased to have this opportunity to explain our regulations to you. After providing background information, I will answer the specific questions raised in your letter.

The National Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards that establish specific levels of safety performance for new motor vehicles and new items of motor vehicle equipment. Standard 205, "Glazing Materials," issued under the Safety Act, has requirements that limit the amount of tinting that can be placed on windows in new vehicles. The standard currently imposes a minimum level of light transmittance of 70% in all areas requisite for driving visibility (which includes all windows on passenger cars). The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash.

Under 108(a)(1)(A) of the Safety Act, no person shall manufacture or sell a new motor vehicle or new item of motor vehicle equipment that does not meet all applicable FMVSS's. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces.

The prohibition in 108(a)(1)(A) against selling complying vehicles and items of equipment does not apply to a vehicle or item of equipment after its first sale to a consumer. However, 108(a)(2)(A) of the Act applies to modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. 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.

Please note that the "render inoperative" provision of section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

I would now like to apply this background to the particular questions raised in your letter.

Question One: "Are the CFRs law and enforceable only by federal agents?"

NHTSA's regulations and safety standards are set forth in Title 49 of the Code of Federal Regulations (CFR). These regulations and standards apply without State ratification to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA enforces these regulations and safety standards.

Question Two: "Are the Federal Motor Vehicle Safety Standards law and only enforceable on new manufactured vehicles?"

The FMVSS's apply to new motor vehicles and new items of motor vehicle equipment, and not to used vehicles or equipment. NHTSA may bring enforcement actions against manufacturers of new vehicles and new items of equipment that do not comply with applicable FMVSS's. NHTSA also enforces the "render inoperative" provision of the Safety Act against commercial entitites that modify new or used vehicles in a manner that violates the "render inoperative" provision. We also note that NHTSA can investigate safety defects in new or used vehicles or items of equipment.

Question Three: "Are states allowed to enact legislation that allows less stringent standards than the CFRs?"

We understand you to ask this in the context of window tinting requirements, since elsewhere in your letter you ask whether a Texas law that allows light transmittance of 35 percent violates Federal law.

Your question relates to 103(d) of the Safety Act, which states:

Whenever a Federal motor vehicle safety standard ... 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.

Whether State law is preempted under 103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the manufacture of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to allow the manufacture or sale of glazing materials or new vehicles containing glazing material that did not meet the specifications of Standard 205.

As stated above, Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses (108(a)(2)(A) of the Safety Act). The effect of 108(a)(2)(A) is to impose limits on the tinting practices of businesses listed in 108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to allow modifications violating Standard 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

Because Federal safety standards regulate the manufacture and sale of new motor vehicles, state requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as they do not interfere with the achievement of the purposes of Federal law. Therefore, a state could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard. However, the state cannot legitimize conduct - the rendering inoperative of glazing by commercial businesses installing window tinting - that is illegal under Federal law.

Question 4: "Concerning the installation of non-complying automotive equipment, i.e., sun screening, taillamp `black out' lenses, neon license plate lamps, etc., is this allowed by the owner but prohibited installation by a commercial entity?"

You are correct that 108(a)(2)(A) of the Safety Act regulates the modifications of only the commercial entities listed in that section of the Act, and that the Safety Act does not prohibit an individual from modifying his or her vehicle such that it no longer complies with the FMVSS's. The States may have requirements governing the modification of a vehicle by individual owners.

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

Sincerely,

John Womack Acting Chief Counsel

ref:205#VSA d:5/5/93

ID: 8257

Mr. James L. Vasko
527 Old Canyon Road
Fremont, CA 94536

Dear Mr. Vasko:

This is in reply to your letter of January 13, 1993, to the agency in which you call our attention to your invention, the "Front Brake Light System." You have informed us that your invention utilizes "the present turn signal lights . . . to notify the driver and or pedestrian in front of the vehicle that the vehicle is in a braking mode," and that this is accomplished with only the present circuitry. You wish to "open a dialogue" with us and will answer any questions we may have.

We do have some questions about this invention. As you know, the individual front turn signal lamps also operate in tandem as hazard warning signal lamps, and flash simultaneously when the hazard warning switch is activated. We assume that your invention flashes both front signal lamps when the brake pedal is applied, and request confirmation of our assumption. We would also appreciate knowing how this is accomplished without "necessity and expense of adding new, complicated apparatus" as you put it. If, on the other hand, the front signal lamps are activated in a steady-burning state, that would be of interest to us. Finally, we would appreciate your views as to how this device would enhance safety, as our concerns have been directed to warning those to the rear of the vehicle that it is about to stop, rather than those to the front.

When we have this information, we shall be pleased to provide you with an interpretation as to the relationship of your invention to the statutes and regulations that this agency administers. Sincerely,

John Womack Acting Chief Counsel

ref:l08 d:2/11/93

ID: 8258

Mr. Raymond S. Byers
Engineering Manager, Research,
Testing, and Certification
Utilimaster Motor Corporation
65598 State Road #19
P.O. Box 860
Wakarusa, IN 46573

Dear Mr. Byers:

This letter responds to your inquiry regarding the alternate placement of a vehicle certification label in your "Aeromate" van. I apologize for the delay in responding.

As you noted in your letter, 49 CFR 567.4 requires that a motor vehicle manufacturer affix a certification label to each vehicle it makes, and permits the manufacturer to place the label in any one of the places listed in that provision. If none of the listed locations is practicable, 567.4 directs the manufacturer to suggest an alternate position for the affixed label, and to request National Highway Traffic Safety Administration (NHTSA) approval for that position.

You explain in your letter that in your "Aeromate" vehicle, the driver's door slides between an inner and outer metal panel, thus making it impossible to affix the label to the hinge pillar, door-latch post, or the door edge that meets the door-latch post. Based on the photographs you included with your letter, affixing the label to the inside of the driver's side door would be unacceptable because, when opened, the door slides between the two metal panels. Thus, when the door is in the open position, the label would be obscured from the view of any observer. You propose installing the label on the inner metal panel in front of the driver's side door opening, to the left of the driver's legs under the instrument panel, and include photographs showing the label affixed to the proposed position. You state, and your photographs appear to confirm, that the location would be visible from the driver's position, and for inspection by officials.

In directing a manufacturer to put its certification label in those places set out in 567.4, NHTSA's purpose is to make these labels easy to see and read. Based on the information you supplied, the agency determines that for this particular vehicle design, installing the certification label as you propose will facilitate seeing and reading the label. On the other hand, placing the label as specified in 567.4 may not be practicable and might interfere with unobstructed viewing of the label. Therefore, on the condition that your company's label complies in all other respects with 567.4, NHTSA grants your request to install the certification label on the inner metal panel in front of the driver's door opening as shown in the photographs that you provided to us.

I hope this information is helpful. If you have any further questions, feel free to contact David Elias of my office at the above address or by phone, at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:567 d:4/27/93

ID: 8259-4

Mr. Michael Love
Manager, Compliance
Porsche Cars North America, Inc.
100 West Liberty Street
Reno, Nevada 89501

Dear Mr. Love:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standards (FMVSS) No. 101; Controls and displays and No. 102; Transmission shift lever sequence, starter interlock, and transmission braking effect. I apologize for the delay in our response. You asked about the standards in connection with three options your company is considering for changing its "Tiptronic" automatic transmission system.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles meet applicable requirements. The following represents our opinion based on the facts provided in your letter.

The current Tiptronic automatic transmission system can be described as follows:

The shift lever is located in the middle console, where it can be moved along either of two slots which are located essentially parallel to the longitudinal axis of the vehicle. The left slot (automatic function) is essentially the same as a conventional automatic transmission gear shift lever, with the following positions (in order): P R N D 3 2 1. At the D position (only) of the left slot, the gear shift lever can be transferred to the M (manual) position of the right slot (manual function). The right slot consists of the following positions (in order): + M -. When the gear shift lever is in the right slot, the driver can select a higher gear (+) or lower gear (-) by tapping the shift lever. The shift lever always returns to the "M" position after being tapped.

There are two gear position displays, one on the middle console and the other on the instrument panel. The middle console display, which is not illuminated, shows each of the 10 positions where the shift lever may be placed. It also shows the position which is selected. The display on the instrument panel, which is illuminated, has two columns which correspond to the slots on the middle console. However, while the left column (corresponding to the left slot or automatic function) shows the positions P R N D 3 2 1, the right column (corresponding to the right slot or manual function) shows the positions 4 3 2 1. In other words, the right column portion of the display shows the available gears and the actual gear selected rather than + M -. For both columns, the selected position or gear is indicated by an illuminated arrow.

In your letter to NHTSA, you indicate that Porsche is considering the following three options for modifying its system:

Option 1. The first proposed modification would eliminate the 3, 2 and 1 positions on the left (automatic) slot.

Option 2a. The second proposed modification would eliminate the 3, 2 and 1 positions on the left (automatic) slot and the + and - positions on the right (manual) slot. Gear selection in the manual mode would be accomplished not by the shift lever but by shift rocker switches on the steering wheel.

Option 2b) The third proposed modification would provide only one slot with the following positions (in order): P R N D M D. In the M position, gear selection would be accomplished by shift rocker switches on the steering wheel.

For each of the proposed modifications, the shift lever positions would be labeled on the middle console, in the same manner as the current system. Similarly, the middle console would not be illuminated. The instrument panel display would not change for any of the options.

You ask a number of questions concerning whether the Tiptronic system, as modified under options 1, 2a and 2b, would comply with Standards No. 101 and 102. The issues raised by your letter are addressed below.

I will begin by identifying the requirements of Standards No. 101 and No. 102 which are relevant to your questions. Section S3.1.4.1 of Standard No. 102 states:

Except as specified in S3.1.4.3, if the transmission shift lever sequence includes a park position, identification of shift lever positions, including the positions in relation to each other and the position selected, shall be displayed in view of the driver whenever any of the following conditions exist:

(a) The ignition is in a position where the transmission can be shifted.

(b) The transmission is not in park.

S3.1.4.4 states:

Effective September 23, 1991, all of the information required to be displayed by S3.1.4.1 or S3.1.4.2 shall be displayed in view of the driver in a single location. At the option of the manufacturer, redundant displays providing some or all of the information may be provided.

Standard No. 101 specifies requirements for the location, identification and illumination of automatic gear position indicators. Section S5.1 requires that gear position display must be visible to the driver under the conditions of S6. Section S5.3.1 and Table 2 of the standard together require that automatic gear position displays be illuminated whenever the ignition switch and/or the headlamps are activated. The entry in Table 2 concerning the automatic gear position display references Standard No. 102. In a April 2, 1989 letter to Porsche concerning the Tiptronic system, we concluded that, given the reference in Standard No. 101 to Standard No. 102, where multiple gear position displays are provided and one complies with Standard No. 102 and the others do not, the requirements of Standard No. 101 must be met for the display which complies with Standard No. 102.

With this background in mind, I will discuss the existing Tiptronic system and the three possible modifications. For the reasons discussed above and in our April 2, 1989 letter, while multiple gear position displays are permitted, one such display must comply with all of the relevant requirements of Standards No. 101 and No. 102. Since your console display is not illuminated, it would obviously not comply with Standard No. 101. I will therefore address your letter in the context of whether the instrument panel display meets the requirements of the two standards. I assume that the instrument panel is activated during the times specified by Standard No. 102.

Under section S3.1.4.1 of Standard No. 102, there must be a display of all of the shift lever positions in relation to each other, and there must be an indication of the position that the driver has selected. In our April 2, 1989 letter, we stated that your design has the following ten shift lever positions: P R N D 3 2 1 + M -. We noted that the right column of the alternative instrument panel displays identified in your letter showed either 4 3 2 1 or 4 3 M 2 1 instead of + M -. We concluded that if the instrument panel display was to be used to meet the requirements of Standard No. 102, it would be necessary for the display to show the 10 actual shift lever positions, including + M -.

Porsche evidently did not follow the opinion provided in that letter, since Porsche neither provided illumination for the console display nor showed the 10 actual shift lever positions, identified in our letter, on the instrument panel display. While we do not understand the reason for this decision by Porsche, we believe that one could reasonably argue that the + and - locations are not really shift lever "positions," since the shift lever cannot be left in those locations. Under this view, + M - could be seen as "one" shift lever position, which is represented on the instrument panel by 4 3 2 1. We would accept this as an alternative way of characterizing the current Tiptronic system, and are therefore not aware of any compliance problems.

I will now turn to the three possible modifications. Once again, since the non-illuminated console display would not meet the requirements of Standard No. 101, the relevant question is whether the instrument panel display meets the relevant requirements of Standards No. 101 and No. 102. A common problem for all three options would be that the instrument panel display retained from the original Tiptronic system would not correspond to the shift lever positions of the modified designs. This could be corrected for options 1 and 2a simply by deleting the 3 2 1 portion of the left column. A more complicated correction would be needed for option 2a, since the display would need to show the following positions in relation to each other: P R N D M D.

I have several other comments on your letter. You stated that for all three options, Porsche believes that it is not necessary to have the shift lever positions 3, 2 and 1, or to necessarily display those positions if selected automatically in the D position, as long as they as displayed when selected manually by use of the shift lever (in option 1) or shift rocker switch(es) (in options 2a and 2b). Porsche is correct that it is unnecessary to provide shift lever positions 3, 2 and 1. Moreover, to the extent that such shift lever positions are not provided but the gears are instead selected automatically in the D position or manually in the M position by tapping the shift lever or shift rocker switch, it is unnecessary to display the gears.

You also stated the following:

Porsche believes that under options 2a and 2b, both the shift lever and the shift rocker switch(es) would be considered as "shift levers" during the period when they are capable of changing the transmission position. The "shift lever position" would then be defined as the transmission position, or mode of operation, that was selected by manipulation of any combination of "shift levers." It follows then that identification of "shift lever position" would entail identifying the distinct transmission operating modes, in relation to each other and the specific mode selected. . . .

For options 2a and 2b, Porsche believes it is not necessary to illuminate the shift rocker switches, just as it is not necessary to illuminate the shift lever, under the provisions of FMVSS 101, as long as the display in the speedometer showing transmission position is illuminated.

We would not view the shift rocker switch(es) as shift levers under any circumstances. Instead, for the vehicle designs at issue, the lever provided on the middle console would be the only shift lever. When the shift lever is in the "M" position, the shift rocker switch(es) simply permit manual shifting that is akin to the automatic shifting that occurs when the shift lever is in the "D" position. The rocker switch(es) could not be used to shift the transmission to P, R or N. Under these circumstances, we view the rocker switch(es) as a control which is auxiliary to the shift lever and unregulated by Standard No. 102. I note that we might take a different position if the rocker switch(es) permitted the transmission to be shifted to P, R or N, since Standard No. 102 includes requirements to prevent shifting errors. I also note that Standard No. 101 does not require transmission shift levers or controls which are auxiliary to shift levers to be illuminated.

I hope you find this information helpful. If you have further questions, please contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:101#102 d:5/17/94

ID: 8261

Mr. Joseph B. Gordon
Manager of Engineering
EIS Brake Parts
P.O. Box 1315
Berlin, CT 06037

Dear Mr. Gordon:

This is in reply to your letter of January 6, 1993, to Rich Van Iderstine of this agency. It has been forwarded to this office because you have, in essence, requested a legal opinion as to the acceptability of a product that your company is considering manufacturing. As you describe it, the product provides an intermittently blinking stop lamp function when the brake pedal is applied. You are concerned that such a device "might be confused with hazard warning lights", and that there may be "other problems/restrictions connected with its manufacture." You have asked for our advice.

Motor vehicle lighting in the United States is subject to both Federal and State requirements. The National Traffic and Motor Vehicle Safety Act (Safety Act) and Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment are the Federal requirements to which I refer.

Standard No. 108, which was issued under the authority of the Safety Act, prescribes requirements for stop lamps and other lamps that must be followed by the manufacturer of the vehicle, and met at the time the vehicle is sold by the dealer to its first owner. One of these requirements, set forth in S5.5.10(d) of the standard, requires stop lamps to be steady- burning. Because your product would create a flashing light, it could not be used as original equipment on a motor vehicle, whether installed by the manufacturer, or by the distributor or dealer after the vehicle has left the factory and before its first sale to a purchaser for purposes other than resale.

The Safety Act includes a provision which governs modifications to vehicles after their initial sale. This Act does not prohibit a vehicle owner from making modifications that affect compliance with Standard No. 108 (or any other Federal motor vehicle safety standard). Thus, a vehicle owner may install your product without violation of Federal requirements. However, we interpret the Safety Act as prohibiting the installation of such a product by a manufacturer, dealer, distributor, or motor vehicle repair business. Under section 108(a)(2)(A) of the Act (15 U.S.C. 1397(a)(2)(A)), these persons shall not "render inoperative, in whole or in part, any device or element of design installed in accordance with a Federal motor vehicle safety standard." In our view, this forbids the installation of equipment that would take a vehicle out of compliance with a Federal motor vehicle safety standard. However, the Act does not forbid the sale of componentry such as your product which creates a noncompliance once it is installed. In summary, under Federal law, any person may sell your device, but only a person other than a manufacturer, dealer, distributor, or motor vehicle repair business may install it.

We are unable to advise you as to whether the laws of any State prohibit the use of flashing stop lamps, and recommend that you consult the American Association of Motor Vehicle Administrators for an opinion. Its address is 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA#108 d:2/18/93

ID: 8262

Jay Lee, President
Pacific Agritrade Inc.
2601 Elliott Ave.
Suite 5139
Seattle, WA 98121

Dear Mr. Lee:

This responds to your January 14, 1993, letter asking for information on how to have an air bag you wish to import from Korea tested by the National Highway Traffic Safety Administration (NHTSA).

I am pleased to have this opportunity to explain our laws and regulations to you. NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products or conduct pre-sale testing of any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. I note that the term "manufacturer" is defined by section 102(5) of the Safety Act to mean "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." (Emphasis added.)

NHTSA has exercised its authority under the Safety Act to establish Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test.

At this time, manufacturers are not required to use a specific method of automatic crash protection to meet the requirements of Standard No. 208. Instead, each automobile manufacturer is allowed to select the particular method for the automatic crash protection installed in its vehicles. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like.

It is unclear from your letter if the air bags you wish to import will be sold to manufacturers for installation in new vehicles or if the air bags will be sold as replacement air bags or retrofit air bags for vehicles which do not have air bags as original equipment. If the air bags are sold to manufacturers for installation in new vehicles, the vehicle manufacturer is required to certify that the vehicle complies with all applicable safety standards, including Standard No. 208. If the air bag is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the installation of the air bag. (See 49 CFR Part 567.7.)

While most of Standard No. 208's requirements are expressed in terms of the performance of the vehicle as a whole and apply only to new vehicles and not to aftermarket equipment, there is one exception to this. Pressure vessels and explosive devices for use in air bag systems must comply with section S9 of Standard No. 208 whether they are part of a new motor vehicle or are aftermarket equipment. Therefore, the manufacturer of these items must certify that they comply with the requirements of S9 of Standard No. 208.

Another Federal requirement that would affect the device if it were installed in a used vehicle, either as a replacement or retrofit air bag, is the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) would apply. 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.

The "render inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208.

You should also note that a replacement or retrofit air bag would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if the air bag contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge. You should be aware that recently the manufacturer of an aftermarket air bag that did not provide crash protection benefits to vehicle occupants ceased offering its air bags following a NHTSA investigation. In addition, NHTSA provided information to the Federal Trade Commission concerning the claims made by the manufacturer in its advertising. We suggest you carefully review the manufacturer's test data on the devices you are considering importing to assure yourself that the air bag would afford adequate protection to vehicle occupants in crashes and that the claims made in the company's advertising are true.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

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

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:VSA#208 d:3/26/93