ID: 1768y

Mr. Karl H. Mayer
Rules and Regulations
Dr.Ing.h.c.F.Porsche AG
Porschestrasse 42
Stuttgart--Zuffenhausen
West Germany

Dear Mr. Mayer:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standards No. l0l, Controls and Displays, and No. l02, Transmission Shift Lever Sequence, Starter Interlock, and Transmission Braking Effect. You asked about the standards in connection with a new transmission and related gear shift mechanism that you are considering producing. I note that your accompanying request for confidentiality was withdrawn by an August l5, l988 letter signed by your attorney, effective September 30, l988.

You stated that the new transmission is characterized by two functions, a manual gear shift and an automatic gear shift, combined in a single unit. A motor vehicle incorporating the transmission does not have a clutch pedal. Operation of the transmission is entirely dependent on the position selected for the gear shift lever. 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 l. 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. You plan to provide two shift displays, one on the middle console and the other on the instrument panel.

You stated that you believe that a dual function transmission of the type described in your letter is permitted if it meets the various requirements of Standards No. l0l and l02 and asked whether we agree with your interpretation. You also asked three questions related to certain aspects of the transmission and related gear shift lever and shift displays. Your questions are responded to below.

By way of background information, and as noted in your letter, 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.

I agree with your basic contention that a dual function transmission of the type described in your letter is permitted if it, and the accompanying gear shift lever and shift displays, meet the various requirements of Standards No. l0l and l02. The performance requirements specified in the two standards do not prohibit dual function transmissions.

I have one primary comment concerning how you should evaluate Standards No. l0l and No. l02 with respect to the compliance of a vehicle equipped with the transmission. In some instances, these standards specify different requirements depending on whether a vehicle is equipped with a manual transmission or an automatic transmission. Thus, a critical issue is which of these requirements would need to be met by a vehicle equipped with your planned transmission. While you characterize the transmission as having two functions, a manual gear shift and an automatic gear shift, combined in a single unit, it is our opinion that the transmission is an automatic transmission for purposes of Federal motor vehicle safety standards. It is possible, of course, to manually control most conventional automatic transmissions, at least to some extent, by means of the gear shift lever, e.g., by shifting the lever from D to L. Your transmission would differ from a conventional automatic transmission primarily in having an additional means of manual control. However, the transmission would still be an automatic transmission. Vehicles equipped with the transmission would thus need to meet the requirements specified by Standards No. l0l and No. l02 for vehicles equipped with an automatic transmission, and not the requirements specified for vehicles equipped with a manual transmission.

I will now address your three specific questions. You stated that it appears to you that when the shift lever is in the manual slot, it is permissible to have the lever, after tapping to shift up or down, return to the original middle position, and asked for our interpretation on this point. We agree that this basic design is permitted under Standards No. l0l and No. l02.

Your second and third questions, which I will address together, concern the shift displays. You stated that you believe it is permissible for both of the dual shift pattern displays, i.e., the one on the middle console and the one on the instrument panel, to be constantly visible so that the driver can simultaneously see the currently used shift mode and also the alternative, and asked for our evaluation of this point. You also asked about the permissibility of two alternative instrument panel displays.

I will begin my discussion of these questions by identifying the relevant requirements of Standards No. l0l and No. l02. Section S3.2 of Standard No. l02 states that the "(i)dentification of shift lever positions of automatic transmissions . . . shall be permanently displayed in view of the driver." NHTSA has previously interpreted "position" to mean the shift lever positions in relation to each other and the position that the driver has selected at the time of selection. Therefore, the display of a gear lever sequence and a gear position indicator is required for automobiles equipped with automatic transmissions. NHTSA has previously interpreted the requirement for permanent display as requiring a display that can be seen regardless of the operating mode of the engine. Thus, it is not permissible for the required display to be visible (e.g., in the case of an electronic display, be activated) only when the key is in the ignition switch. (I note that on August 25, l988, NHTSA published a notice of proposed rulemaking to amend the requirement for permanent display. A copy is enclosed.)

Standard No. l0l specifies requirements for the location, identification and illumination of automatic gear position displays. Section S5.l requires that gear position displays must be visible to the driver under the conditions of S6. Section S6 provides that the driver is restrained by the crash protection equipment installed in accordance with Standard No. 208, Occupant Crash Protection, adjusted in accordance with the manufacturer's instructions. Section S5.3.l 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. l02.

Your design includes the following ten shift lever positions: P R N D 3 2 l + M -. Under section S3.2 of Standard No. l02, all of these positions must be permanently displayed, i.e., there must be a display of the l0 positions in relation to each other and there must be an indication of the position that the driver has selected. As indicated above, Standard No. l0l specifies requirements for the location, identification and illumination of automatic gear position displays.

The fact that your design would include more than one gear position display raises several issues, including (l) whether more than one display is permitted, (2) whether each display (where multiple displays are provided) must meet all of the requirements specified by Standards No. l0l and No. l02, and (3) whether multiple displays can be used to meet the requirements of the standards for gear position displays where no single display meets the requirements. It is our opinion that more than one display is permitted. It is also our opinion that if one display meets all of the requirements of Standards No. l0l and No. l02, the additional display(s) provided voluntarily by the manufacturer need not meet any particular requirements (except for section S5.3.5 of Standard No. l0l, which specifies requirements for sources of illumination not otherwise regulated by that standard). We have not previously found it necessary to address the issue of whether multiple displays can be used to meet the requirements of the standards for gear position displays where no single display meets the requirements. However, one commenter on the August 25, l988 notice cited above asked whether two displays could be used together to demonstrate compliance with section S3.2 of Standard No. l02. We plan to address that specific issue in the context of that rulemaking.

While it is not entirely clear from your letter, the display on the middle console may provide permanent display (including times when the ignition is not on) of the shift lever positions, i.e., a display of the l0 positions in relation to each other and an indication of the position selected by the driver. It appears, however, that illumination is not provided for this display. Given the reference in Standard No. l0l to Standard No. l02, it is our opinion that where multiple gear position displays are provided and one complies with Standard No. l02 and the others do not, the requirements of Standard No. l0l must be met for the display which complies with Standard No. l02.

If the display on the console fully met the requirements of Standards No. l0l and No. l02, it would be unnecessary for the additional display on the instrument panel to also meet the standards (with the exception of section S5.3.5 of Standard No. l0l, as noted above). I note that neither of the alternative instrument panel displays shown in your letter show all of the shift lever positions. While the displays do show P R N D 3 2 l, they show either 4 3 2 l or 4 3 M 2 l instead of + M -. If the instrument panel display, rather than the console display, was to be used to meet the requirements of section S3.2 of Standard No. l0l, it would be necessary for the display to show the l0 actual shift lever positions, including + M -. I also assume that the instrument panel display is not activated when the ignition is not on and thus does not provide a permanent display.

I would like to note that the discussion in the preceding paragraph should not be read as a suggestion that you change the instrument panel display to show + M - instead of 4 3 2 l or 4 3 M 2 l. One consequence of your design is that, in the manual mode, the driver would not know what gear the car was in from either observing the location of the gear shift lever or by knowing the shift lever position (+ M or -). Your design takes care of this, however, by providing an indication of actual gear position on the instrument panel display. Assuming that you can meet the requirements of Standards No. l0l and No. l02 by means of the console display, we believe that it would be a desirable feature of your design to indicate actual gear position on the voluntarily provided instrument panel display.

I hope this information is helpful. If you have any further questions concerning this matter, please contact me.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:l0l:l02 d:4/3/89

ID: 17690.ztv

Mr. William A. Parkyn
Teledyne Lighting & Display Products
12525 Daphne Avenue
Hawthorne, CA 90250

Dear Mr. Parkyn:

This is in reply to your letter of March 20, 1998, asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108 with respect to stop lamps for motor-driven cycles.

Paragraph S5.1.1.22 of Standard No. 108 states in pertinent part that a motor-driven cycle may be equipped with a stop lamp whose photometric output "for the group of test points specified in Figure 1 is at least one-half of the minimum values set forth in that figure." Table III specifies that motorcycle stop lamps shall meet SAE Standard J586. You ask for confirmation that S5.1.1.22 "means that motor-driven cycle stop lamps must meet one half of the minima set forth in SAE Standard J586."

The minimum allowable candlepower value for a stop lamp is established by Figure 1b. For a single compartment stop lamp, this is 80 candlepower. Rather than determining photometric compliance through measuring candlepower at each individual test point, Figure 1c groups the individual test points into five Zones. Figure 1c is titled "Sum of the Percentages of Grouped Minimum Candlepower." The sum of the percentages for Zones 1 and 5 is 65 percent. The minimum allowable candlepower value for Zones 1 and 5 is determined by multiplying the minimum value of Figure 1b by the Zone percentage in Figure 1c, that is to say 65 percent of 80 candlepower, which is 52 candlepower. Under S5.1.122, then, at least half this value must be met by a motorcycle stop lamp, that is to say, Zones 1 and 5 must achieve at least 26 candlepower. The corresponding value established by SAE J586 is only 25 candlepower. For this reason, it is not correct to say that S5.1.1.22 means that motor-driven cycle stop lamps must meet one-half the minima set forth in SAE J586. However, this is a true statement for Zones 2, 3, and 4 where the values under both Figure 1 and SAE J586 are 100, 380, and 100 candlepower respectively.

In our review of your letter, we find that S5.1.1.22 could be more clearly expressed, and should read that the "photometric output for any group of test points specified in Figure 1c is at least one-half of the minimum value obtained when the minimum allowable stop lamp candlepower value of Figure 1b is multiplied by the appropriate percentage for the group that is specified in Figure 1c."

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/1/98

ID: 17691.wkm

Mr. Fred Peltz
Peltz Manufacturing, Inc.
217 West Street
Post Office Box 301
St. Martin, MN 56376

Dear Mr. Peltz:

This responds to your letter of March 26, 1998, to this office and refers to your telephone conversation with Walter Myers of my staff on April 7, 1998. You stated that your company manufactures recycling equipment and you inquired whether the antilock brake system (ABS) requirements of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems (49 Code of Federal Regulations 571.121) applies to such equipment. You attached a promotional brochure depicting your equipment which you have named Rotochopper. As discussed below, your Rotochopper would not be considered a motor vehicle and would therefore not be subject to the Federal motor vehicle safety standards (FMVSS).

You stated that you contract with a company to manufacture axles for your recycling equipment. That company has stated that it can no longer supply such axles without being equipped with ABS unless you have a letter from this agency stating that you are excluded from such requirement. You stated that these axles are installed on your recycling equipment as a base and as a mode of transporting the equipment from your factory to the customer and occasionally from job site to job site. The equipment is designed to spend extended periods of time at off-road job sites and is not intended to be moved around on public highways.

Chapter 301 of Title 49, U. S. Code , which is the National Highway Traffic Safety Administration's authority to establish FMVSSs, defines "motor vehicle" as:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

49 U.S. Code 30102(a)(6).

In analyzing the information you provided, including the brochure, it is our opinion that your Rotochopper is not a motor vehicle within the statutory definition. It is primarily designed to be used off-road and although capable of being transported on-road from the factory to the customer and occasionally thereafter from one job site to another, its on-road use is only incidental and not the primary purpose for which the equipment was manufactured. This is in contrast to instances in which vehicles such as dump trucks frequently use the public roads and highways going to and from off-road job sites, but stay there for only a limited time. Such vehicles are considered motor vehicles for purposes of the Safety Act, since their on-road use is more than "incidental."

In summary, your Rotochopper, not meeting the statutory definition of a "motor vehicle," is not required to comply with the FMVSSs, and in particular, the ABS requirements of Standard No. 121.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121#VSA
d.7/23/98

ID: 17692.wkm

Mr. John White
John White Company
770 Washington Street
Largo, IN 46941

Dear Mr. White:

This responds to your letter of March 30, 1998, to Walter Myers of my staff and Mr. Myers' telephone conversation of April 7, 1998, with your foreman, Jerry. You stated that your company builds and repairs hopper bottom trailers used for hauling grain. You equip your trailers with used undercarriages, including axles, brakes, and suspensions, which you mount on new frames and beds. You asked whether your trailers are required to comply with the antilock brake system requirements of Federal Motor Vehicle Safety Standard No. 121, Air brake systems. The answer depends on the particular facts of your operation.

The agency's regulation with regard to combining new and used components in assembling trailers is found at 49 Code of Federal Regulations (CFR) 571.7(f), Combining new and used components in trailer manufacture (copy enclosed), which provides in pertinent part:

When new materials are used in the assembly of a trailer, the trailer will be considered newly manufactured . . . unless, at a minimum, the trailer running gear assembly (axle(s), wheels, braking and suspension) are not new, and was taken from an existing trailer -

(1) Whose identity is continued in the reassembled vehicle with respect to the Vehicle Identification Number; and

(2) That is owned or leased by the user of the reassembled vehicle.

By its terms, therefore, subsection 571.7(f) applies to situations in which new components are combined with used components in the assembly of a trailer. Specifically, the trailer will be considered new unless, at a minimum, the axle(s), wheels, brakes, and suspension are not only not new, but must have been taken from an existing trailer. Moreover, the vehicle identification number of the existing trailer must be continued in the reassembled trailer and both must have been owned or leased by the user of the reassembled trailer. Unless all these conditions are met, the trailer is considered new and must be certified to all applicable standards, including the ABS requirements of Standard No. 121, in accordance with 49 CFR Part 567 (copy enclosed).

For your additional information, I am enclosing fact sheets entitled Federal Requirements for Manufacturers of Trailers and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:121#571
d.6/12/98

ID: 17693.drn

Mrs. June Becklin
397 Jesse James Lane
Mahtomedi, MN 55115

Dear Mrs. Becklin:

This responds to your request for an interpretation whether dealers may sell new multipurpose passenger vehicles (MPVs) or passenger cars that they know will be used to transport school children. As explained below, the National Highway Traffic Safety Administration (NHTSA) does not prohibit a dealer from selling a new MPV or car for such a purpose.

By way of background, NHTSA is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles, including school buses. Any person selling a new vehicle must sell a vehicle that meets all applicable standards. Under our regulations, a "bus" is a vehicle that has a seating capacity of 11 persons or more. A "school bus" is a "bus" that is sold for purposes that include carrying school children to or from school or related events (49 C.F.R. 571.3). Because any new "bus" that is sold for pupil transportation purposes is a "school bus," the school bus standards apply, and any person selling such a vehicle must ensure that the vehicle is certified as meeting our school bus standards.

We do not require, however, that only school buses can be sold for pupil transportation. Under our regulations, a van that seats fewer than 11 persons is an "MPV," which is defined in 571.3 as a motor vehicle "designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation." A passenger car is a motor vehicle "except a multipurpose passenger vehicle, motorcycle, or trailer, designed for carrying 10 persons or less" (49 CFR 571.3). An MPV or passenger car is a different type of vehicle than a bus or a school bus, and must meet safety standards that apply to their vehicle type. Dealers selling new MPVs and passenger cars must be sure to sell vehicles that have been certified to the applicable standards.

We do not have a policy either for or against the use of MPVs and cars for school transportation. These vehicles must meet safety standards that provide high levels of crash protection. NHTSA has issued Highway Safety Program Guideline No. 17, "Pupil Transportation Safety" (copy enclosed), that establishes minimum recommendations for State pupil transportation safety programs. To the extent that the guideline distinguishes between vehicles, it does so by distinguishing school buses from non-school buses. For instance, among the recommendations is

Paragraph IV.B.1.h., in which NHTSA recommends that all buses regularly used for pupil transportation should "[c]omply with all FMVSS applicable to school buses at the time of their manufacture." That is, if a bus is regularly used to transport pupils, it should be a school bus. The provision does not apply to MPVs and passenger cars.

I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA102(14)#Part 571.3, "multipurpose passenger vehicle"# Part 571.3 "school bus only"
d.7/6/98

ID: 17696.drn

Gary Miller, Vice President
Chillicothe Ford Lincoln Mercury
521 South Washington
Chillicothe, MO 64601

Dear Mr. Miller:

This responds to your request for an interpretation regarding the removal of seats from a new 15-passenger Ford E350 Club Wagon, for possible sale to a school. You ask whether the van must meet Federal school bus standards if seats are removed, reducing seating positions to fewer than 10. Our answer is that if the seats were permanently removed prior to the vehicle's sale, the van would not be a "school bus" subject to our school bus standards. However, the vehicle would be considered to be a multipurpose passenger vehicle (MPV) and subject to standards for MPVs.

Your letter states that a "School of Vocational Education" in your area would like the Club Wagon. In a telephone conversation with Dorothy Nakama of my staff, you explained that high school aged students attend the School of Vocational Education ("the School"), and get credit towards high school diplomas for attending the School.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles, including school buses. In 1974, Congress enacted legislation directing NHTSA to issue safety standards on specific aspects of school bus safety.

Our statute at 49 U.S.C.30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Under our regulations, a "bus" is any vehicle, including a van that has a seating capacity of 11 persons or more. Our statute defines a "school bus" as any bus which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. Therefore, a 15-passenger van that is likely to be used significantly to transport students is a "school bus."

Because the School of Vocational Education instructs high school students, NHTSA considers it a "school." If a new 15-passenger Club Wagon is sold or leased to transport students of the School (e.g., leased on a regular or long term basis), the vehicle must meet NHTSA's school bus standards. Conventional 15-passenger vans do not have the safety features necessary for them to be certified as school buses. Therefore, a conventional Club Wagon thus cannot be sold or leased, as a new vehicle, to the School for pupil transportation.

As for removing seats from the van, in an interpretation letter of April 2, 1996 to the Michigan State Police (copy enclosed), NHTSA addressed the issue of dealers reducing seating capacity on a bus to fewer than 11 positions. NHTSA stated the following (see page 3):

If a dealer permanently reduces the seating capacity of a bus to less than 11, the modified vehicle is no longer a "bus." Because the dealer would not be selling a bus, the requirement to sell a school bus does not apply. However, a dealer modifying a new vehicle in this manner would have other responsibilities as a vehicle "alterer" under our regulations (49 CFR 567.7). The dealer would be changing the vehicle's classification to that of a multipurpose passenger vehicle (MPV), and would have to certify that the vehicle complies to the MPV standards.

The letter also addresses several hypothetical situations where dealers lease or sell passenger vans with 5, 8 or 12 seating positions to schools.

You also wish to know whether the van has to meet school bus standards if seating capacity were reduced to 10 or fewer and you obtained a letter from the School stating that it will never transport more than 10 people. As explained above, with seating capacity reduced to less than 11 persons, the vehicle would be subject to the MPV standards. In any event, you appear to be asking whether a school's assurances that it will not carry more than 10 persons in a vehicle enables you to sell non-school buses to the school. The answer is no. A vehicle is a bus depending on whether it is designed for carrying more than 10 persons. The number of persons actually carried in the vehicle has no effect on its classification. Thus, a letter from the school will have no effect on your responsibilities, described in the April 1996 letter, to sell complying vehicles.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA#571.3"school bus only"
d.7/28/98

ID: 17697.ztv

Tadashi Suzuki, Manager
Automotive Equipment
Legal & Homologation Sect.
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153,
Japan

Dear Mr. Suzuki:

This is in response to your letter of April 2, 1998, asking for confirmation of the acceptability under Standard No. 108 of Stanley's new visual/optical headlamp system.

The system is based upon an existing system aimed by VHADs. In the new system, the VHAD for vertical aim has been removed. The horizontal aiming mechanism is "deleted by removing the horizontal VHAD and by fixing a cover on the head of the aiming bolt so that the access is impossible." The requisite marks are on the lenses identifying it as a visually/optically aimable headlamp..

You note the remarks in the preamble to the final rule on visually/optically aimable headlamps that "any current headlamp design that is modified to include visual/optical aimability must still provide mechanical aimability if that headlamp is intended to be a replacement in vehicles in which the lamp was used before its redesign." You inform us that this headlamp is intended for a new model year vehicle and that the existing type of headlamp will be provided for the replacement of the present model year of vehicle. The two headlamps will have different parts numbers and lens identifiers. Under these circumstances, you have asked for an interpretation that the new system need not continue to provide mechanical aimability.

It is not advisable for headlamps on the same vehicle to have be aimed by two different means. However, in this situation, where the two headlamps have different parts numbers and lens identifiers, we have concluded that Stanley is justified in concluding that the visually/optically aimable headlamp is not a replacement for the headlamp that is mechanically aimable, and therefore need not retain the mechanical aiming feature on the newer headlamp. We believe that Stanley's intent would be even clearer if the cartons in which each type of replacement headlamp is shipped are marked to identify the specific model year(s) for which replacement is intended.

Sincerely,
Frank Seales, Jr.
Chief Counsel
NCC-20 ZTVinson:mar:5/30/98:62992:OCC 17697
interp. 108; redbook (2)
NCC-20 ZTVinson:mar:5/21/98:62992:OCC 17697
cc: NCC-01 Subj/Chron
ztv; 17697; U:\ncc20\interp\108\17697.ztv

ID: 1769y

Mabel Y. Bullock, Esq.
Assistant Attorney General
State of North Carolina
Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629

Dear Ms. Bullock:

Thank you for your letter to Ms. Susan Schruth of my staff, regarding North Carolina General Statute 20-127, Windshields must be unobstructed. I regret the delay in responding. You enclosed a copy of the statute, the regulations implementing it, a copy of a December 18, l987 legal memorandum prepared by your department concluding that a State statute or regulation allowing 35% light transmittance through windows in motor vehicles would be preempted by current Federal safety laws and standards regulating this same subject matter, and a copy of a May 6, 1988 letter from the Motor and Equipment Manufacturers Association (MEMA) to Mr. William S. Hiatt, the Commissioner of Motor Vehicles for North Carolina, asserting that the North Carolina statute was not preempted by Federal laws and regulations. You asked for my opinion as to whether the North Carolina statute conflicts with any provision of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. /1381 et seq.) or with the Federal Motor Vehicle Safety Standards (49 CFR 571.1 et seq.).

Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, Glazing Materials (49 CFR /571.205), which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." Because of this statutory requirement, any manufacturer, importer, or dealer that installs solar films or other sun screen devices on new glazing materials or the glazing installed in new vehicles must certify that the vehicle continues to comply with the light transmittance and other requirements of Standard No. 205.

The requirement that a car comply with all applicable safety standards applies only until the car is first sold to a consumer. See section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)). Both before and after a vehicle is first sold to a consumer, any modifications to the vehicle's windows, including tinting, are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with any safety standard. In the case of windows in a passenger car, this means that no manufacturer, dealer, distributor, or repair business could install a sun screen device or window tinting that would result in a light transmittance of less than 70 percent for any window of the car, or otherwise cause the car to no longer comply with the other requirements of Standard No. 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $1000 for each noncomplying installation.

Please note that Federal law does not affect vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles.

The authority of States to regulate glazing is affected by section 103(d) of the Safety Act (15 U.S.C. /1392(d)). This section provides that:

[w]henever 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 as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.

The effect of this provision of the Safety Act, with respect to the light transmittance requirements of Standard No. 205, is to expressly prohibit any State from specifying some level of light transmittance other than the 70 percent specified in Standard No. 205 for new motor vehicles and new glazing for use in motor vehicles. Each of the individual States has authority to enforce identical standards (i.e., a minimum of 70 percent light transmittance) for new motor vehicles and new glazing for use in motor vehicles. Additionally, each of the individual States has the authority to regulate the modifications that may be made to vehicles by their owners and to establish requirements for vehicles to be registered in that State.

Having provided this background, we want to turn now to the results of our review of the North Carolina statute and regulations, along with your office's memorandum concluding that the statute is preempted by Federal law.

1. New vehicles and new glazing for use in vehicles. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted if it specifies any requirements other than the requirements of Standard No. 205 (minimum of 70 percent light transmittance) for new vehicles or for new glazing for use in motor vehicles. Section 108(a)(1) of the Safety Act and Standard No. 205 require all new vehicles and new glazing for use in motor vehicles to be delivered to the first purchaser with a light transmittance of at least 70 percent. Section 103(d) of the Safety Act expressly preempts any non-identical State standard on the subject of window tinting. Section 20-127(d) of the North Carolina statute appears to permit a single application of tinted film with a light transmittance of as little as 35 percent to be applied to vehicle glazing after factory delivery, but before sale to the public. This provision is preempted by Federal law, as is any other provision of North Carolina law which specifies that new glazing and glazing in new vehicles shall have some level of light transmittance other than the 70 percent minimum light transmittance requirement specified in Standard No. 205.

2. Modifications to vehicles and glazing by manufacturers, distributors, dealers and repair businesses after the first purchase of the vehicle or glazing in good faith for purposes other than resale. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted by Federal law if it permits the commercial installation of sunscreen materials so that the combination of the sunscreen material and the existing glazing no longer meet the 70 percent light transmittance requirement specified in Standard No. 205. This conclusion is based on the conflict between the North Carolina statute and the "render inoperative" provision of section 108(a)(2)(A) of the Safety Act. That provision prohibits any manufacturer, distributor, dealer, or repair business from rendering inoperative the compliance of a vehicle or an item of glazing with any of the requirements of Standard No. 205, including the minimum 70 percent light transmittance requirement.

Apart from the issue of preemption, I want to note that the provisions of State law cannot alter the effect of the "render inoperative" prohibition in Federal law. Regardless of how North Carolina law treats the combination of the glazing and the tinting, if it results in less than 70 percent light transmittance, a manufacturer, distributor, dealer, or repair business that installed such tinting on a vehicle would be liable for the Federal civil penalty discussed above.

3. Modifications to vehicles and glazing by individual owners themselves after the first purchase of the vehicle or glazing in good faith for purposes other than resale. As noted above, Federal law does not regulate modifications that individual owners themselves make to their vehicles or glazing after the first purchase in good faith for purposes other than resale, even if those modifications result in the vehicles or glazing no longer complying with the requirements of Standard No. 205, including the requirement for at least 70 percent light transmittance. The State of North Carolina is free to establish whatever restrictions, if any, it deems appropriate on individual owner modifications, without regard to the requirements of Standard No. 205. To the extent that the North Carolina statute seeks to address these individual owner modifications, it would not be preempted by Federal law.

4. Requirements for vehicles to be registered in the State of North Carolina. An individual State is free to establish whatever requirements it deems appropriate for vehicles to be registered in the State, provided that those State requirements would not prohibit the registration of vehicles that complied with the requirements of the Federal safety standards. Thus, the State of North Carolina is free to permit vehicles that do not comply with the requirements of Standard No. 205 to be registered in North Carolina. To the extent that the North Carolina window tinting statute seeks to establish requirements for vehicles to be registered in the State, it would not be preempted by Federal law.

We have also reviewed the May 6, 1988 letter from MEMA to Mr. Hiatt, in which MEMA discusses why it believes North Carolina's statute would not be preempted by Federal law. The MEMA discussion does not address the "render inoperative" provision in section 108(a)(2)(A) of the Safety Act, which prohibits commercial businesses from adversely affecting the compliance of elements of design installed in a vehicle or item of equipment in compliance with a safety standard, regardless of whether the vehicle is new or used. As was previously stated, Federal law prohibits any manufacturer, dealer, distributor, or repair business from ever installing window tinting material for the owner of a car if the combination of the original glazing and the tinting material results in less than 70 percent light transmittance through any window of the car.

To summarize, the North Carolina statute would be preempted to the extent that it seeks to permit some level of light transmittance other than that specified in Standard No. 205 for glazing in vehicles prior to the first purchase of the vehicles in good faith for purposes other than resale. Similarly, the statute would be preempted to the extent it seeks to permit the commercial installation of sunscreen materials with the result that the combination of the sunscreen material and the existing glazing no longer complies with the requirements of Standard No. 205. However, the North Carolina statute would not be preempted to the extent that it seeks to regulate the modifications that owners themselves can make to their vehicles or to the extent that it seeks to establish requirements for vehicles to be registered in the State, even if those requirements differ from those specified in Standard No. 205.

Sincerely,

Erika Z. Jones Chief Counsel

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ID: 1770y

The Honorable James L. Oberstar
U.S. House of Representatives
District Office
231 Federal Building
Duluth, MN 55802

Dear Mr. Oberstar:

Thank you for your recent letter on behalf of Mr. Joseph Mikoll regarding occupant protection devices for school buses with a gross vehicle weight rating of 10,000 pounds or less. You indicated that you had read my November 3, 1988 letter to Mr. Mikoll. In that letter, I explained that Mr. Mikoll's "safety bar" devices could not be installed in small school buses in place of safety belts at every seating position, but that "safety bars" could be installed in addition to the required safety belts. I am pleased to have this opportunity to answer your two additional questions on this subject.

Question 1: Is there a procedure that [Mr. Mikoll's company] could follow to request a waiver of the provisions of Standard No. 222 which would allow its safety bar devices to be the sole passive restraint on small buses?

The National Traffic and Motor Vehicle Safety Act contains only one provision that would allow this agency to exempt vehicles from compliance with Standard No. 222 or any other applicable Federal motor vehicle Federal safety standard. Under the conditions specified in section 123 of the Safety Act (15 U.S.C. 1410), a motor vehicle manufacturer could file a petition asking this agency to temporarily exempt a group of motor vehicles from compliance with a safety standard or standards. Thus, a school bus manufacturer that wishes to install "safety bars" in some of its buses in lieu of the safety belts required by Standard No. 222 could seek a temporary exemption from Standard No. 222 for some of its buses.

It is my understanding that, while Mr. Mikoll's company manufactures the "safety bars" and other motor vehicle equipment, it does not manufacture any motor vehicles. If this understanding is correct, Mr. Mikoll's company is not eligible to file for a temporary exemption.

Question 2: Are DOT funds available to firms such as [Mr. Mikoll's company] to do rigorous testing and R&D on passive restraint systems?

This agency generally does not provide research and development support for unsolicited proposals, although we may solicit research proposals and award such contracts on a competitive basis. In addition, the Department has a Small Business Innovation Research Program that Mr. Mikoll may wish to learn more about. I have enclosed a guide on submitting proposals. This program is administered by the Transportation Systems Center, Kendall Square, MA 02142. Dr. George Kovatch is the Program Coordinator. However, Mr. Mikoll should be aware that funds for unsolicited proposals and small business development are extremely limited right now.

I hope you find this information helpful. Please let me know if you have any further questions or need some additional information.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

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ID: 17712.drn

Mr. Harold V. Turnquist
Transportation Director
District 625
Saint Paul Public Schools
360 Colborne Street
Saint Paul, MN 55102-3299

Dear Mr. Turnquist:

This responds to your April 7, 1998, letter to Mr. Bob Pollack of the National Highway Traffic Safety Administration (NHTSA's) Region V Office, asking for information whether your department may use 15-passenger vans to transport adults and their children in your Early Childhood and Family Education Program (ECFE). As explained below, we do not consider the ECFE Program to constitute a "school" as that term is used in our statute. Thus, new buses leased to you for transporting ECFE Program participants are not required to be school buses under Federal law.

Your letter explains that the Saint Paul Public Schools Community Education Department operates a parent education program for adult learners called the ECFE Program. The program is described as follows:

Parents and their non school age children, who range in age from a few months to three or four years old, attend programs designed to assist the parent in developing skills necessary for raising their children. Class locations include both storefront locations (leased space) and public school buildings. When ECFE Programs are housed within school buildings there is no connection between the ECFE Program and the school program.

Your letter states that your Department is leasing several 15-passenger vans to transport ECFE Program participants. According to your letter, Minnesota state law does not require school bus transportation for ECFE Program participants.

In a telephone conversation with Dorothy Nakama of my staff, Mr. Mark Vogel of your office stated that the adult participants in the ECFE Program are not high school age, i.e., they are all older than eighteen. Mr. Vogel also stated that the young children transported in the vans are in vehicle safety restraints appropriate for their size and age.

By way of background, NHTSA is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 (copy enclosed) requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "school bus" as any vehicle that is designed for carrying 11 or more persons and which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125 (copy enclosed). Therefore, large (e.g., 15-passenger) vans that are likely to be used significantly to transport school students are "school buses."

The question raised by your letter, whether the ECFE Program constitutes a "school" is one the agency finds appropriate to resolve case-by-case, focusing on the type of services provided by the organization at issue.

The facts you have provided show that the adult participants in the ECFE Program are older than high school age. Your letter states that the adults attend programs "designed to assist the parent in developing skills necessary for raising their children." For purposes of NHTSA's safety standards, I have concluded that instruction in developing these skills are distinct from the academic instruction associated with a "school," and that therefore, the ECFE Program is not a "school." Accordingly, if a dealer were to sell or lease a new bus (e.g., a 15-passenger van) to the Saint Paul Public Schools Community Education Department for the exclusive use of the ECFE Program, that dealer need not sell or lease a new school bus.

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
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d.4\29\98