ID: markowski

Mr. Norbert P. Markowski
2021 S. 102^nd St.
West Allis, WI 53227

Dear Mr. Markowski:

This responds to your recent letter requesting the National Highway Traffic Safety Administration's assistance to enable you to seek alteration of your Model Year 2000 Buick LeSabre to accommodate your needs. You explain that you need a left side foot accelerator in order to assist your driving. You cannot drive safely with a right foot accelerator because your right leg is fused at the knee and ankle. You state that your right foot rests on the right accelerator and that, while driving, you do not dare move your right leg lest you unintentionally press on the right accelerator.

In a telephone conversation with Dorothy Nakama of my staff, you stated that your LeSabre has already been modified to include a left side foot accelerator pedal. You ask us for written permission that would permit you to go to a dealership or other business to remove the right accelerator pedal.

This letter should provide the relief you seek. We do not prohibit modifiers from removing the pedal, as long as the work is done without negating the safety of a required component or element of design.

Section 30122(b) of Title 49 of the United States Code (the title under which Standard No. 124 was issued) provides in part that--

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle ... in compliance with an applicable motor vehicle safety standard prescribed under this chapter ...

Our safety standards do not require that an accelerator pedal be provided on a motor vehicle, or that the accelerator pedal be placed to the right of the brake pedal. Since our standards do not require the accelerator pedal to be on the right, moving the pedal position from the right to the left would not "make inoperative" the compliance of your vehicle with Standard No. 124. However, Standard No. 124, Accelerator Control Systems, requires that a vehicle's throttle must return to the idle position when the driver removes the actuating force from the accelerator control or in the event of a severance or disconnection in the accelerator control system. Your LeSabre must meet this safety requirement with the accelerator pedal on the left.

Further, after the right accelerator pedal has been removed from your LeSabre, I would strongly urge you to inform all potential drivers of your LeSabre that the accelerator pedal and the brake pedal in your vehicle are reversed from their usual positions. In addition, if you should decide to sell your LeSabre in the future, I would suggest that the right foot accelerator pedal is replaced before the vehicle is sold.

Showing this letter to your dealer or repair business when you take your car to have the right accelerator pedal removed should provide the assurance they seek to perform the modification. If the dealer or repair business wishes to verify the authenticity of this letter, they may call the telephone number below.

If you have any other questions, please contact Dorothy Nakama at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA#124
d.9/29/99

ID: matsumoto-2.ztv

Mr. Todd Matsumoto
1625 A. Makahuine St.
Honolulu, HI 96817

Dear Mr. Matsumoto:

This responds to your letter concerning your 1964 and 1968 "dune buggy" kit cars. You informed us that the "local government" requires you "to provide the state with a design plan certified by a professional engineer that meets all federal safety standards in order for my car to be legally registered." Subsequently, you faxed us a copy of a letter to you, dated June 30, 2003, from the State of Hawaiis Department of Transportation, which indicates that your vehicles are considered "reconstructed vehicles" under Hawaii law. You asked whether your cars have to meet any specific Federal motor vehicle safety standards (FMVSS or standards) or other regulations.

I will address the applicability of Federal law, 49 U.S.C. Chapter 301, to this issue. This law authorizes the National Highway Traffic Safety Administration to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. All new motor vehicles and items of motor vehicle equipment must meet the FMVSSs in effect on the date of manufacture.

We have previously provided the following explanation [1] how our regulations apply to kit cars:

We have no definition of "kit cars" but we understand them to be passenger cars consisting of a mixture of old and new parts, assembled into vehicle form by either the supplier or purchaser of a kit of motor vehicle equipment. Some of the FMVSS apply to individual equipment items (for example, tires, glazing, seat belt assemblies), and if these items are new and furnished with the kit, they will have been certified by their manufacturers. If the vehicle is assembled entirely from new parts, the kit supplier must furnish certification with the kit that, when assembled, the vehicle will comply with all applicable FMVSS. However, if the vehicle is manufactured incorporating a number of previously used parts, particularly involving the chassis and/or drive train, we generally have considered the vehicle to be a used one, and none of the FMVSS that apply to new completed vehicles (as contrasted with those that apply to equipment items) apply to it.

In order to be registered for use, a kit car must meet the requirements of the State of licensing.

Assuming that the construction of a kit car does not involve the use of so many new parts as to make it a new motor vehicle, we do not consider it to be a new motor vehicle subject to the FMVSSs in effect on the date of completion of the kit car. Based on the information you provided with your letter and in telephone conversations with Taylor Vinson of my staff, it appears that this is the case with your 1964 and 1968 dune buggy kit cars.

However, the States may regulate the reconstruction of vehicles. The letter you provided to us from the State of Hawaiis Department of Transportation indicates that it considers your vehicles to be "reconstructed vehicles" under Hawaii law, and subject to its requirements for the approval of reconstructed vehicles.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.7/25/02





---

[1] Letter to Mr. Joel Trim, September 27, 1993.

ID: Maxon9759

S.Lafferty, Manager, Engineering
Maxon
16205 Distribution Way
Cerritos, CA 90703

Dear Mr.Lafferty:

This responds to your letter in which you raised several questions regarding Federal motor vehicle safety standard (FMVSS) No.403, Platform lift systems for motor vehicles.Your letter raised issues with the control illumination, attachment hardware, and interlock requirements of the standard.I have addressed each issue below.

By way of background, the agency established FMVSS Nos.403 in order to protect individuals that are aided by canes, walkers, wheelchairs, scooters, and other mobility devices and rely on platform lifts to enter/exit a motor vehicle.FMVSS No.403 is an equipment standard that specifies minimum performance requirements for platform lifts designed for installation on motor vehicles.The agency also established the companion standard FMVSS No.404, Platform lift installations in motor vehicles, which specifies requirements for vehicles equipped with platform lifts.

Illumination of Lift Controls

S6.7.6.2 of FMVSS No.403 requires that platform lift controls on a public use lift must be illuminated according S5.3 of FMVSS No.101, Controls and displays.In part FMVSS No.101 requires that the illumination of controls must be adjustable to provide at least two levels of brightness, one of which is barely discernible to a driver who has adapted to dark ambient roadway conditions.The low level of illumination is to minimize the impact of the illumination on a drivers night vision.

In your letter, you stated that the controls on the lifts manufactured by your company, Maxon, are not located in the driver compartment.As such, you stated that there is no need for a dual level of illumination as specified in FMVSS No.101.

The illumination requirement in FMVSS No.403 is applicable to all controls, regardless of location.An amendment to this requirement would have to be accomplished through the agencys rulemaking procedure.

Attachment Hardware

S6.3.1 of FMVSS No.403 requires that a lift manufacturer provide all of the attachment hardware necessary to install a lift on a vehicle.In your letter you stated that some installations may require longer bolts than that provided or that bolts may be lost during installation.You asked if Maxon would be permitted to specify attachment hardware by "grade, size, plating etc and allow substitute hardware" in those instances.

S6.13.1 requires a lift manufacturer to specify, either by make and model or by design elements, the vehicles on which the lift is designed to be installed.The attachment hardware provided must permit the installation of a lift on these vehicles.If a vehicle is listed under S6.13.1 that requires a longer bolt, then a longer bolt must be provided.

With regard to hardware lost during the installation process, we recognize that lift installers may need to obtain replacement hardware.Nothing in the standard prohibits a lift manufacturer from providing the hardware specifications in conjunction with the actual hardware.

Interlock requirements

Your letter correctly states that under S6.10.2.2 of FMVSS No.403, an interlock must prevent operation of a platform lift from a stowed position until forward and rearward motion of a vehicle is inhibited.You then asked what is required if during lift operation there is a failure of the interlock: should lift operation cease or continue in the event of such a failure?

FMVSS No.403 does not specify how a lift must operate in the event of an interlock failure.Therefore, it is up to the individual manufacturer to determine an appropriate default status.

I hope you find this helpful.If you have any additional questions, please contact Mr.Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:403#404
d.2/2/05

ID: maxon_threshold7346

S. Lafferty, Manager, Engineering
Maxon
16205 Distribution Way
Cerritos, CA 90703




Dear Ms. Lafferty:

This responds to you letter in which you asked about the threshold warning requirements under Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform lift systems for motor vehicles. You stated that there is an apparent discrepancy between the threshold warning system requirement and the associated test procedure, and asked which takes precedent. As explained below, the specified test procedure for the threshold warning system requirement is consistent with that requirement.

As part of FMVSS No. 403, the agency established a threshold warning signal requirement for platform lifts in part to minimize the risk of a lift user backing off a vehicle before a lift is properly positioned. S6.1 of FMVSS No. 403 requires an appropriate threshold warning signal to be activated when any portion of a passengers body or mobility aid occupies the platform threshold area defined in S4 of that standard, and the platform is more than 25 mm (1 inch) below the vehicle floor reference plane. A platform lift must meet this requirement when tested in accordance with S7.4 of the standard.

In your letter you stated that it is possible to design a threshold warning system that "will pass a test that is performed as described in S7.4 and not completely fulfill the requirements of S6.1.3". You described a threshold warning system designed with an optical sensor at the interior boundary of the platform threshold area. You stated that such a system would activate the warning signal only when a passenger is crossing the boundary of the threshold at the same time as the platform is lower than 25 mm from the vehicle floor. You further stated that such a system would not activate a signal if a passenger were completely within the threshold area when the platform reached the specified distance from the vehicle floor. Your letter indicated that you believe that such a system would "pass" the test procedure, but not comply fully with the requirement.

A system as you described would not comply with the requirements of S6.1.3 when tested as specified in S7.4. As stated above, S6.1 requires the appropriate warning signal to activate when tested in accordance with S7.4. S7.4.2 specifies that, with the platform lift at the vehicle floor loading position:

[P]lace one front wheel of the unloaded wheelchair test device [specified in S7.1.2] on any portion of the threshold area defined in S4. Move the platform down until the alarm is actuated. Remove the test wheelchair wheel from the threshold area to deactivate the alarm. Measure the vertical distance between the platform and the threshold area and determine whether that distance is greater than 25 mm (1 in).

Thus, S7.4.2 specifies placing the front wheel of the test device on any portion of the threshold area. As explained in 49 CFR 571.4, the use of the term "any" in connection with a range of values or set of items means generally, "the totality of the items or values, any one of which may be selected by the [agency] for testing". Accordingly, the procedure specified in S7.4.2 includes placement of the front wheel that could result in the entire test device being within the threshold area prior to the platform being lowered. This also includes placement that results in a portion of the test device being on the platform.

Given the discussion above, a system such as you described would not comply when tested under S7.4.2. As such, there is no discrepancy between the requirement of S6.1.3 and the test procedure specified in S7.4.

If you have any additional questions, please contact Mr. Chris Calamita of my staff at (202) 366-0536.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:403#404
d.11/3/05

ID: 86-5.25

TYPE: INTERPRETATION-NHTSA

DATE: 09/29/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Rohit Vaidya

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 30, 1986 letter concerning Safety Standard No. 213, Child Restraint Systems, and your planned built-in child seat. You asked for information concerning all safety standards that would be applicable to the seat and concerning a pending petition for amending Standard No. 213 to permit the installation of built-in child seats in new motor vehicles. I regret the delay in our response.

Standard No. 213 is the only standard which this agency has issued concerning child restraint systems. It was drafted at a time when add-on or portable systems were the only type of child restraint systems. Accordingly, the requirements of the standard are oriented toward that type of system. However, the agency has granted a petition to broaden the standard to permit the installation of built-in child restraint systems. We expect to issue a proposal regarding this matter later this year. Copies of the standard and the petition are enclosed.

As a new manufacturer of motor vehicle equipment, you should know that a manufacturer has a variety of responsibilities in addition to certifying compliance with all applicable safety standards. Manufacturers have the responsibility to conduct notification and remedy campaigns for safety-related defects or noncompliances with standards in their products. If a child restraint system fails to comply with Standard No. 213 or contains a safety-related defect, the manufacturer may elect to either (1) repair the child restraint so that the defect or noncompliance is removed; or (2) replace the child restraint with an identical or reasonably equivalent restraint which does not have the defect or noncompliance. Whichever of these options is chosen, the child restraint manufacturer must bear the expense for the remedy.

Installation of your product in a used vehicle would also be affected by the National Traffic and Motor Vehicle Safety Act. Section 108(a)(2)(A) of the Motor Vehicle Safety Act prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from "rendering inoperative" in whole or in part, any device or element of design installed in a motor vehicle in compliance with an applicable safety standard. Such a rendering inoperative could occur, for example, if the installer of a built-in child safety seat removed the original vehicle seat, installed a replacement vehicle seat containing the built-in child safety seat, but did not ensure that the seat belt anchorages for adult seating positions in the replacement rear seat continued to meet the location and strength requirements of Standard No. 210, Seat Belt Assembly Anchorages. A rendering inoperative could also occur if the installer did not ensure that a replacement vehicle seat continued to meet the strength requirements of Standard No. 207, Seating Systems, to minimize the possibility of failure by forces acting on that seat as a result of vehicle impact.

Section 108(a)(2)(A) does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual vehicle owners can themselves install any product they want on their vehicles, regardless of whether that product would render inoperative the compliance of the vehicle's seats or seat belt assembly anchorages with the requirements of Standards Nos. 207 or 210. However, the agency encourages vehicle owners not to install products which could lessen the occupant protection afforded by the original seats or safety belt assembly anchorages and thus adversely affect safety.

For further information concerning these responsibilities, please consult the enclosed information sheet for new manufacturers.

ENCLS(3)

OCC 0617

Erika Jones Chief Counsel National Highway Traffic Safety Administration

April 30, 1986

Dear Madam,

This letter is in reference to the Federal Regulations regarding automobile child safety-seats - the Federal Motor Vehicle Safety Standard # 213.

I am an inventor and I expect to be receiving a Letters Patent from the US Patent & Trademark Office for a child safety seat that is designed to be an integral part of a vehicle. I would be very grateful if you could send me a list of all current applicable test standards for automobile child safety-seats (including FMVSS #213, above).

Furthermore, I understand the above referenced standard #213 is under review because of a petition that has been submitted to your office to broaden the scope of the regulation. I also would like to request: (1) information on the status of this review; and (2) a copy of the petition.

Thank you very much.

Rohit Vaidya

cc: DR. C. CLARK, NHTSA MR. W. FONTAINE

ID: 86-5.26

TYPE: INTERPRETATION-NHTSA

DATE: 09/29/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. William C. Fisher

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. William C. Fisher Product Engineer Parker Hannifin Corporation Parflex Division 1300 North Freedom Street Ravenna, OH 44266

Dear Mr. Fisher:

Thank you for your letter and enclosure regarding the labeling requirements for air brake hose assemblies set forth in Standard No. 106, Brake Hoses. I regret the delay in our response. We have referred the matter to our enforcement division to obtain more information about the assemblies you enclosed. We will return the samples of brake hose assemblies you sent, as you requested, when our examination is completed.

Sincerely,

Erika Z. Jones Chief Counsel

National Highway Traffic Safety Admin. Department of Transportation Office of Chief Council, NOA32 Room 5219 400 Seventh Street, S.W. Washington,D.C. 20590

Attention : Ms. Deirdre Hom, Attorney Advisor

Subject: D.O.T. Safety Standard 106 Section 7.2.3, Parts a and b - Identification of brake tubing assemblies by banding; Section 7.2.3.1 - End fitting marking to D.O.T. regulations.

Dear Deirdre:

Per our recent conversation, I have enclosed samples of the air brake end fittings which we contend are not in compliance with DOT 106 regulations. These assemblies were permanently ". . attached by crimping or swaging. ." a brass collar to the nylon tubing. This would, in our opinion, constitute a permanently attached fitting which is not reusable. In addition, no identification band was found on the coil assembly, and all end fittings lack D.O.T. identification markings.

I request that you review these samples and render a decision on the following questions:

1) Do these samples constitute permanently attached fittings under Section 7.2.3?

2) Is the attachment of a D.O.T. identification band required on brake hose assemblies made with this type of end fitting?

3) Is the end fitting identification marking in compliance with DOT 106 regulations?

I have enclosed for review, a current production sample of a Parker brake coil assembly that complies with DOT 106 regulations.

I request that these samples be returned to me at the Parker Parflex Division upon completion of your study.

Ms. Deirdre Hom Page 2

Your swift attention to this matter will be appreciated. If you have any additional questions, please contact me at (216) 296-2871, ext. 259.

Very truly yours,

William C. Fisher Product Engineer

WCF:dm

Enclosures

1) Unidentified brake hose end fitting (Section Out) 2) Unidentified brake hose end fitting 3) Parker brake coil assembly

cc: William Hertel, Corporate Staff Engineer, Parker Hannifin Corp. Mark Kugelman, General Marketing Mgr., Parker Hannifin Corp. Robert Wiseman, Plant Mgr., Parker Hannifin Corp.

ID: 86-5.27

TYPE: INTERPRETATION-NHTSA

DATE: 09/29/86

FROM: DALE T. FANZO

TO: DIANE STEED -- NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 09/02/88 FROM ERIKA Z JONES TO GERALD PETERSON; REDBOOK A32, STANDARD 202; LETTER DATED 05/17/88 FROM GERALD PETERSON TO ERIKA JONES, OCC - 2052; LETTER DATED 08/28/87 FROM CARL C CLARK TO JERRY PETERSON

TEXT: Dear Ms. Steed,

"I hereby petition the National Highway Traffic Safety Administration to change the requirements of Standard #202 to include head restraints on vehicles other than passenger cars. I feel that the listing of these mini vans as multi purpose evades the issue of safety. I am enclosing this copy of my letter to Lee Iacocca and Chrysler's response. A brief summary of my accident follows:

"On February 11, 1986 I was sitting at a red light on Route 22. A welding truck was in back of me and was struck by a milk tanker. The driver of the tanker dozed off at 50 mph, pusing the welding truck into me with me ending up 211 ft. from point of contact.

"The result from the accident was I had 0 degree head movement for 9 weeks and a A/C separation of the left shoulder. After seeing 4 doctors and 6 therapists I am able to move my head to the left, however, only 60 degree to the right. It is 7 months now and I may have permanent damage to my ligaments in my neck. I have been told that a normal whiplash is caused when your head goes back and it bounces off the head restraint. However, my 3 seated Voyager SE had no head rest which caused my head to snap over the seat causing my injury.

"Ms. Steed, my van is listed with the State as a station wagon and also with my insurance company. If you check to see how many SE Voyager and Caravans were purchased since 1984 you would find, I'm sure, 80%-90% with families. My purpose for this petition is to make sure that no other innocent party will have to go through what I have been going through. To make matters worse, I am a self employed individual who relys on sales by way of 40,000 miles a year to support my family."

In summary, I would appreciate your time and consideration towards this petition. I can be reached at the above address, or by calling (412) 831-8514.

ENCLS

ID: 86-5.28

TYPE: INTERPRETATION-NHTSA

DATE: 10/01/86

TITLE: TEXT OF THE RULING BY THE ILLINOIS SUPREME COURT UPHOLDING THE STATE'S LAW REQUIRING SEAT BELT USE BY DRIVERS AND FRONT SEAT PASSENGERS IN AUTOMOBILES

ATTACHMT: ATTACHED TO LETTER DATED 07/32/89 FROM STEPHEN P. WOOD -- NHTSA TO BUTLER DERRICK -- CONGRESS; REDBOOK A31; STANDARD 208 LETTER DATED 07/11/89 FROM BUTLER DERRICK -- CONGRESS TO STEVE WOOD -- NHTSA

TEXT: Docket Nos. 62719, 62799, 63705, 63224 cons -- Agenda 40 -- May 1986.

THE PEOPLE OF THE STATE OF ILLINOIS et al., Appellants, v. ELIZABETH J. KOHRIG et al., Appellees.

PER CURIAM: The defendants in these four consolidated cases were issued traffic citations for failure to wear seat safety belts while operating their motor vehicles on a street or highway in violation of section 12-603.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.1 (hereinafter the section).) In each case, the trial court concluded that the section was unconstitutional and dismissed the charge. The State appealed each case directly to this court pursuant to our Rule 302(a) (94 Ill. 2d R. 302(a)), and the cases were consolidated for purposes of appeal. Only two of the four defendants -- Elizabeth J. Kohrig and Regina L. Greene -- have filed briefs in this court; however, various parties have been permitted to file briefs as amicus curiae.

At issue is whether the section, which requires drivers of motor vehicles and their front-seat passengers to wear safety belts when driving on a public highway or street, violates the due process guarantees of the State and Federal constitutions. Ill. Const. 1970, art. I, sec. 2; U.S. Const., amend. XIV, sec. 1.

The section, which became effective on July 1, 1985, provides in part:

"(a) Each driver and front seat passenger of a motor vehicle operated on a street or highway in this State shall wear a properly adjusted and fastened seat safety belt; except that, a child less than 6 years of age shall be protected as required pursuant to the Child Passenger Protection Act. Each driver of a motor vehicle transporting a child 6 years of age or more, but less than 16 years of age, in the front seat of a motor vehicle shall secure the child in a properly adjusted and fastened seat safety belt." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.1(a).)

The statute also provides that certain persons are exempt from complying with the seat-belt-use requirement, including persons with a written medical waiver from a physician or government agency; those persons frequently stopping and leaving the vehicle or delivering property from the vehicle if its speed between stops does not exceed 15 miles per hour; and drivers operating a vehicle in reverse. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.1(b)(1),

(b)(4).) Certain vehicles also are exempt from the statute's requirements, including motorcycles, motorized pedalcycles, and vehicles manufactured prior to 1965. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.1(b)(5), (b)(9).) Violators of the section are guilty of a "petty offense and subject to a fine not to exceed $ 25." Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.I(d).

At the outset we note that, in reviewing the constitutionality of Illinois' mandatory-seat-belt law, this court does not join in the debate over whether the law is desirable or necessary. Our nation was founded in large part on the democratic principle that the powers of government are to be exercised by the people through their elected representatives in the legislature, subject only to certain constitutional limitations. Although this court has never hesitated to invalidate laws that it believes to be unconstitutional, we emphasize that our role is a limited one. The issue here in "not what the legislature should do but what the legislature can do." City of Wichita v. While (1970), 205 Kan. 408, 409, 469 P.2d 287, 288.

Defendant Greene contends that the section violates her fundamental right to privacy protected by the due process clause of the fourteenth amendment. (U.S. Const., amend XIV, sec. 2.) Additionally, both defendants argue that the section is beyond the police powers of the legislature and thus violates the due process clauses of the State and Federal constitutions. We first turn to the issue of whether the section violates defendants' fundamental right to privacy protected by the fourteenth amendment.

Regulations that limit a person's constitutional right to privacy may be justified only by a "'compelling state interest,'" and the legislation "must be narrowly drawn to express only the legitimate state interests at stake." (Roe v. Wade (1973), 410 U.S. 113, 155, 35 L.Ed.2d 147, 178, 93 S. Ct. 705, 728. See also Carey v. Population Services International (1977), 431 U.S. 678, 686, 52 L.Ed. 2d 675, 685, 97 S. Ct. 2010, 2016.) However, "'only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" [citation]'" (Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 65, 37 L. Ed. 2d 446, 462, 93 S. Ct. 2628, 2639, quoting Roe v. Wade (1973), 410 U.S. 113, 152, 35 L. Ed.2d 147, 176, 93 S. Ct. 705, 726), or those liberties "'deeply rooted in this Nation's history and tradition'" (Bowers v. Hardwick (1986), 478 U.S. , , 92 L.Ed. 2d 140, 146, 106 S.

Ct. 2841, 2844; see also Moore v. City of East Cleveland (1977), 431 U.S. 494, 503, 52 L. Ed.2d 531, 540, 97 S. Ct. 1932, 1938) are included in the right of privacy guaranteed by the due process clause of the fourteenth amendment. The Supreme Court has selected only a few rights for such an esteemed status: the "privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing." Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 65, 37 L. Ed. 2d 446, 462, 93 S. Ct. 2628, 2639. See Bowers v. Hardwick (1986), 478 U.S. , , 92 L. Ed. 2d 140, 148, 106 S. Ct. 2841, 2346; Paul v. Davis (1976), 424 U.S. 693, 712-13, 47 L. Ed. 2d 405, 420-21, 96 S. Ct. 1155, 1166.

Moreover, recognizing that a court is "most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution," the Supreme Court has emphasized that there should be "great resistance" to further expanding the substantive due process right of privacy. (Bowers v. Hardwick (1986), 478 U.S. , , 92 L. Ed.2d 140, 148, 106 S. Ct. 2841, 2846.) Thus, attempts by litigants to expand the privacy right beyond matters relating to marriage, procreation, contraception, family relations, abortion, child rearing and education have largely been unsuccessful. See, e.g., Bowers v. Hardwick (1986), 478 U.S. , 92 L. Ed. 2d 140, 106 S. Ct. 2841 (right to privacy does not encompass right to engage in homosexual sodomy); Kelley v. Johnson (1977), 425 U.S. 231, 244, 47 L. Ed. 2d 708, 714, 96 S. Ct. 1440, 1444 (police officer does not have privacy right to choose hairstyle); Paul v. Davis (1976), 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (no privacy protection of reputation); Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (privacy right does not encompass right of adults to watch obscene movies in places of public accommodation).

In the present case it cannot be said that defendant Greene's claimed right to decide whether or not to wear a safety belt on a public highway resembles those liberties identified by the Supreme Court as being included in the right of privacy protected by the fourteenth amendment. Although the section in question implicates a person's interest in "liberty" in the sense that it restricts his freedom of choice, the law here does not regulate those intimate

decisions relating to marriage, procreation, child rearing, education or family that have heretofore been recognized as deserving of heightened constitutional protection. (See Wells v. State (1985), A.D.2d , 495 N.Y.S. 2d 591 (mandatory-seat-belt-use law does not violate right of privacy). Cf. People v. Thomas (1984), 159 Cal. App. 3d Supp. 18, 206 Cal. Rptr. 84 (statute requiring the securing of a child passenger in a seat-restraint system does not infringe on defendant's fundamental right of privacy); State v. Fetterly (1969), 254 Or. 47, 456 P.2d 996 (motorcycle helmet law does not violate defendant's right of privacy).) Nor do we think that the right to decide whether or not to wear a safety belt is "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [it] were sacrificed" (Palko v. Connecticut (1937), 302 U.S. 319, 325-26, 82 L. Ed. 288, 292, 58 S. Ct. 149, 152), or a liberty "deeply rooted in this Nation's history and tradition" (Moore v. East Cleveland (1977), 431 U.S. 494, 503, 52 L. Ed. 2d 531, 540, 97 S. Ct. 1932, 1938). The States historically have been given a wide latitude to regulate the use of motor vehicles (Bibb v. Navajo Freight Lines, Inc. (1959), 359 U.S. 520, 530, 3 L. Ed. 2d 1003, 1010, 79 S. Ct. 962, 968), and the individual driver's autonomy on the road has, out of necessity for the public safety and welfare, been significantly curtailed by State regulation. Like the court in Bisenius v. Karns (1969), 42 Wis. 2d 42, 165 N.W.2d 377, appeal dismissed (1969), 395 U.S. 709, 23 L. Ed. 2d 655, 89 S. Ct. 2033, we reject any notion that the right of privacy includes the right to "do one's thing" on an expressway:

"There is no place where any such right to be let alone would be less assertable than on a modern highway with cars, trucks, busses and cycles whizzing by at sixty or seventy miles an hour. When one ventures onto such a highway, he must be expected and required to conform to public safety regulations and controls, including some that would neither have been necessary nor reasonable in the era of horse-drawn vehicles." (42 Wis. 2d 42, 55, 165 N.W.2d 377, 384.)

We are unwilling to graft onto the Constitution a right of privacy to decide whether or not to wear a safety belt where there is no textual basis or a clear historical precedent for such a right in the language of the Constitution or the opinions of the Supreme Court. To do so woul be to place the court in a position of acting as a super legislature,

nullifying laws it does not like. That is not our proper role in a democratic society. Therefore, we hold that the section does not infringe upon defendant's fundamental right of privacy protected by the fourteenth amendment. Neither does it infringe upon any right to privacy arising under the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6).

Defendants also argue that the section does not further the health, safety or welfare of the general public, asserting that the statute only protects the safety of the individual driver and passenger. They contend that since the section interferes with their right to decide whether or not to wear a safety belt, and has no corresponding public benefit, the statute exceeds the State's police power and violates the due process guarantees of the State and Federal constitutions.

It is well established that the legislatures, not the courts, have the primary role in our democratic society in deciding what the interests of the public require and in selecting the measures necessary to secure those interests. (City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 115; Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill. 2d 116, 127.) Recognizing the legislature's broad power to provide for the public health, welfare and safety, the courts are hesitant to second-guess a legislative determination that a law is desirable or necessary. Only when the statute in question affects a fundamental constitutional right will the courts subject the legislation to strict or exacting scrutiny. In such cases, the State must have a "compelling" purpose for the law and show that it's goals cannot be accomplished by less restrictive means. (Carey v. Population Services International (1977), 431 U.S. 678, 686, 52 L. Ed. 2d 675, 685, 97 S. Ct. 2010, 2016.) Few rights, however, have been identified as "fundamental," since only those rights "that lie at the heart of the relationship between the individual and a republican form of nationally integrated government" are deemed deserving of heightened judicial scrutiny. (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 97.) Thus, in most cases involving substantive due process challenges to statutes, the courts give substantial deference to the legislative enactments.

In the present case we already have determined that the section here involved does not infringe upon the defendants' right of privacy protected by the fourteenth

amendment, and defendants do not argue that the statute implicates any other fundamental constitutional right or liberty. As such, the State need not show a "compelling interest" for the law. It is sufficient that there is a rational basis for the statute. That is, the law will be upheld if it bears a rational relation to a legitimate legislative purpose and is neither arbitrary nor discriminatory. (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 487-88, 99 L. Ed. 563, 572, 75 S. Ct. 461, 464; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 368; Hayen v. County of Ogle (1984), 101 Ill. 2d 413, 419; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453.) Under the rational-basis test, a statute is presumed to be valid, and the party challenging the statute has the burden of proving that the statute is irrational. (Hayen v. County of Ogle (1984), 101 Ill. 2d 413, 419; Pozner v. Mauck (1978), 73 Ill. 2d 250, 255.) As long as there is a conceivable basis for finding a rational relationship, the law will be upheld. McGowan v. Maryland (1961), 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 368.

In challenging the section as exceeding the scope of the State's police power, the defendants principally rely on the case of People v. Fries (1969), 42 Ill. 2d 446. In Fries the court held that a statute requiring the operator or passenger of a motorcycle to wear protective headgear was unconstitutional. The court reasoned that the purpose of the headgear requirement was to "safeguard the person wearing it" and was unrelated to the safety of the public at large. (42 Ill. 2d 446, 450.) It concluded that the statute constituted a "regulation of what is essentially a matter of personal safety" and exceeded the scope of the State's police power. (42 Ill. 2d 446, 450.) Here, too, defendants argue that the decision of whether or not to wear a safety belt is "essentially a matter of personal safety" and that any regulation restricting the individual's right to make such a decision exceeds the State's police power.

The State, on the other hand, maintains that Fries was wrongly decided, and it urges us to overrule that decision. It correctly notes that at present Fries stands alone in holding that a motorcycle helmet law is unconstitutional. The overwhelming weight of authority is that motorcycle-helmet laws are a valid exercise of the State's police

power. (See Kingery v. Chapple (Alaska 1972), 504 P.2d 831; State v. Beeman (1975), 25 Ariz. App. 83, 541 P.2d 409; Penney v. City of North Little Rock (1970), 248 Ark. 1158, 455 S.W.2d 132; Love v. Bell (1970), 171 Colo. 27, 465 P.2d 118;State v. Brady (Del. Super. 1972), 290 A.2d 322; Hamm v. State (Fla. 1980), 387 So. 2d 946; State v. Cotton (1973), 55 Hawaii 138, 516 P.2d 709; State v. Albertson (1970), 93 Idaho 640, 470 P.2d 300; City of Wichita v. White (1970), 205 Kan. 408, 469 P.2d 287; Everhardt v. City of New Orleans (1968) 253 La. 285, 217 So. 2d 400, appeal dismissed and cert. denied (1969), 395 U.S. 212, 23 L. Ed. 2d 214, 89 S. Ct. 1775; State v. Quinnam (Me. 1977), 367 A.2d 1032; Simon v. Sargent (D. Mass. 1972), 346 F. Supp. 277, aff'd (1972), 409 U.S. 1020, 34 L. Ed. 2d 312, 93 S. Ct. 463; Commonwealth v. Howie (1968), 354 Mass. 769, 238 N.E.2d 373, cert. denied (1968), 393 U.S. 999, 21 L. Ed. 2d 464, 89 S. Ct. 485; City of Adrian v. Poucher (1976) 398 Mich. 316, 247 N.W.2d 798; State v. Edwards (1970), 287 Minn. 83, 177 N.W.2d 40; State v. Cushman (Mo. 1970), 451 S.W.2d 17; State v. Eight Judicial District Court (1985), 101 Nev. 658, 708 P.2d 1022; State v. Merski (1973), 113 N.H. 323, 307 A.2d 825; State v. Krammes (1969), 105 N.J. Super. 345, 252 A.2d 223; City of Albuquerque v.Jones (1975), 87 N.M. 486, 535 P.2d 1337; People v. Bennett (1977), 89 Misc. 2d 382, 391 N.Y.S.2d 506; State v. Anderson (1969), 275 N.C. 168, 166 S.E.2d 49; State v. Odegaard (N.D. 1969), 165 N.W.2d 677; State v. Stouffer (1971), 28 Ohio App. 2d 229, 276 N.E.2d 651; Elliott v. City of Oklahoma City (Okla. Crim. App. 1970), 471 P.2d 944; State v. Fetterly (1969), 254 Or. 47, 456 P.2d 996; Commonwealth v. Kautz (1985), 341 Pa. Super. 374, 491 A.2d 864; State ex rel. Colvin v. Lombardi (1968), 104 R.I. 28, 241 A.2d 625; Arutanoff v. Metropolitan Government of Nashville & Davidson County (1969), 223 Tenn. 535, 448 S.W.2d 408; Ex Parte Smith (Tex. Crim. App. 1969), 441 S.W.2d 544; State v. Acker (1971), 26 Utah 2d 104, 485 P.2d 1038; State v. Solomon (1969), 128 Vt. 197, 260 A.2d 377; State v. Laitinen (1969), 77 Wash. 2d 130, 459 P.2d 789; State v. Zektzer (1975), 13 Wash. App. 24, 533 P.2d 399, cert. denied (1975), 423 U.S. 1020, 46 L. Ed. 2d 392, 96 S. Ct. 457; Bisenius v. Karns (1969), 42 Wis. 2d 42, 165 N.W.2d 377, appeal dismissed (1969), 395 U.S. 709, 23 L. Ed. 2d 655, 89 S. Ct. 2033.) Alternatively, the State contends that the statute being challenged here promotes valid public

interests and thus is distinguishable from the motorcycle helmet law found to be unconstitutional in Fries.

Defendants are correct in asserting that the primary goal of the section is to protect the individual driver and front-seat passenger from death or serious injury. As such, the statute interfers with the individuals' choice concerning his or her personal safety. However, arriving at those conclusions does not ipso facto mean that the law is devoid of any public benefit and is unconstitutional. Regardless of a law's primary objective, it will be upheld if it bears a rational relation to a legitimate legislative purpose. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 368-69; Illinois Gamefowl Breeders Association v. Block (1979), 75 I11. 2d 443, 453.) In that regard, the defendants have not persuaded us that the legislature could not have found that the law bears a rational relationship to a legitimate legislative purpose. The legislative debates clearly indicate that the legislators believed that safety-belt use would protect persons other than the belt wearers by helping drivers to maintain control of their vehicles, and that the law would promote that economic welfare of the State by reducing the public and private costs associated with serious injuries and deaths caused by automobile accidents.

During debates in the House of Representatives, a principal sponsor of the safety-belt legislation remarked:

"The Bill would not only protect drivers and passengers in the front seat, the Bill would also protect other people. It would protect other drivers. It would protect pedestrains on our highways and on our sidewalks. The reason for that, of course, is that even a minor * * * accident, can if * * * a car is driven by a person who doesn't have a seat belt, * * * result in that person losing control of the car and injuring other people on or about the car." (83d Ill. Gen. Assem., House Debates, May 16, 1984, at 212 (statement of Representative John Cullerton).)

Another legislator argues that if she were to drive an automobile without her safety belt fastened "and I lose control of my car, I am endangering others." (83d Ill. Gen. Assem., House Debates, May 16, 1984, at 223 (statement of Representative Josephine Oblinger).) The Governor, in signing the seat-belt law, also agreed that the law would help drivers to maintain control of their vehicles and avoid accidents with other motorists and pedestrians:

"Unbelted passengers in a motor vehicle literally become human projectiles in the event of a crash. Unbelted passengers

can interfere with the ability of an operator to respond to the collision, and unbelted drivers may lose control of a vehicle and thus cause death and injury to others." Letter of Governor James R. Thompson to the General Assembly indicating his intent to sign House Bill 2800 (Jan. 8, 1985).

The State can enact laws aimed at reducting traffic accidents, since such laws are clearly related to the health, welfare and safety of the public. We also believe that the legislature could rationally conclude that unbelted drivers and passengers endanger the safety of others. In upholding a law similar to the one here under review, the court in People v. Weber (1985), 129 Misc. 2d 993, 494 N.Y.S.2d 960, stated:

"A driver who is injured or who is jolted away from his vehicle's controls during a skid or by an initial impact, may well be less able to prevent or minimize injuries caused by an accident. Also, an unrestrained occupant of a vehicle may injure others inside or out of the vehicle during an accident. The preventing or reduction of such an injury seems to the Court to be a valid State interest." (129 Misc. 2d 993, , 494 N.Y.S.2d 960, 963.)

It also is conceivable that drivers who wear safety belts are less likely to fall asleep at the wheel, or to lose control of their vehicles in situations where the driver must apply the brakes suddenly, or in cases where a vehicle begins to skid or swerve. Safety belts can also prevent passengers from being thrown against the driver. And, as the State observes, children and other occupants who are wearing safety belts are less likely to distract the driver. See People v. Weber (1985), 129 Misc. 2d 993, , 494 N.Y.S.2d 960, 963; Druhot, The Constitutionality of the Illinois Mandatory Seat Belt Use Legislation, 74 Ill. B.J. 290, 296 (1986); Werber, A Multi-Disciplinary Approach To Seat Belt Issues, 29 Cleve. St. L. Rev. 217, 244 (1980).

Defendants argue that there is no statistical evidence showing that seat-belt use helps the driver to maintain control of his vehicle and avoid accidents with other motorists or pedestrains. Even assuming this argument is correct, it is without merit. "The fact that a congressional directive reflects unprovable assumptions about what is good for the people * * * is not a sufficient reason to find that statute unconstitutional" (Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 62, 37 L. Ed. 2d 446, 460, 93 S. Ct. 2628, 2638), and a court "will not disturb a police regulation merely where there is room for a difference of

opinion as to its wisdom, necessity and expendiency." (City of Carbondale v. Brewster (1979), 78 I11. 2d 111, 115. See also Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 515.) Moreover, "the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 487-88, 99 L. Ed. 563, 572, 75 S. Ct. 461, 464.) Here, we think that the legislature could rationally determine that the seat-belt-use law would serve the public safety and welfare by reducing the likelihood that a driver would lose control of his vehicle and jeopardize other motorists or pedestrians.

Another reason advanced by the State for the section is that the law promotes the economic welfare of the State by reducing the public costs associated with serious injuries and deaths caused by automobile accidents. The legislative history of the section indicates that legislators were concerned about the financial costs associated with highway accidents. Representative Cullerton remarked that, the safety-belt legislation "would clearly save money," asserting that "it cost the State over 800,000 dollars for a 26 year old person who is made a paraplegic as a result of a car crash." (83d Ill. Gen. Assem., House Debates, May 16, 1984, at 212 (statement of Representative John Cullerton).) Another Representative stated: "The lives we were save and the injuries that we avoid are the injuries and lives that we, the taxpayers, are very likely to be responsible for in the long run. We're not talking about somebody's own individual decision to end up in a car crash and find him or herself in a hospital for 20 years with that individual paying the bill. It's the taxpayers that are going to be paying those bills." (83d Ill. Gen. Assem., House Debates, May 16, 1984, at 220 (statement of Barbara Currie).) Senator James Philip, in urging passage of the seat-belt law, observed that " in 1982 in Illinois some seventy-five people were killed in automobiles [while] performing their job * * *. This costs Illinois employers some twelve million dollars." (83d Ill. Gen. Assem., Senate Debates, June 21, 1984, at 159 (statement of Senator James Philip).) Senator Dawn Netsch remarked: "We intrude because the consequences of the thousands of people * * * who are injured and whose affictions then are passed on

to their families, to all of us in society * * *." (83d Ill. Gen. Assem., Senate Debates, June 21, 1984, at 162 (statement of Senator Dawn Netsch).) Governor Thompson, in explaining his reasons for signing the legislation, estimated that the seat belt law would "save more than 300 lives in Illinois in the first year, will avoid nearly 43,000 injuries and save more than $ 400 million in costs." Letter of Governor James R. Thompson to the General Assembly indicating his intent to sign House Bill 2800 (Jan. 8, 1985).

It cannot be seriously questioned that the police power may be used to promote the economic welfare of the State, its communities and its citizens. "[I]n the interest of general welfare, the police power may be exercised to protect citizens and their businesses in financial and economic matters, [and] it may be exercised to protect the governments itself against potential financial loss." (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 326.) A law whose aim is to reduce the private and public costs resulting from injuries and deaths caused by motor vehicle accidents is therefore within the police power of the State. In finding that a motorcycle helmet law was rationally related to the public welfare, the court in Simon v. Sargent (D. Mass. 1972), 346 F. Supp. 277, aff'd (1972), 409 U.S. 1020, 34 L. Ed. 2d 312, 93 S. Ct. 463, stated:

"From the moment of the injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job, and, if the injury causes permanent disability, may assume the responsibility for his and his family's continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned." (346 F. Supp. 277, 279, aff'd (1972), 409 U.S. 1020, 34 L. Ed. 2d 312, 93 S. Ct. 463.)

Because of the drain on private and public financial resources caused by highway accidents, society has a legitimate interest in minimizing injuries which result from such accidents. See Wells v. State (1985), A.D.2d 495 N.Y.S.2d 591; People v. Weber (1985), 129 Misc. 2d 993, 494 N.Y.S.2d 960; State v. Eighth Judicial District Court (1985), 101 Nev. 658, 708 P.2d 1022; State v. Beeman (1975), 25 Ariz. App. 83, 541 P.2d 409; Love v. Bell (1970), 171 Colo. 27, 465 P.2d 118; See also Druhot, The Constitutionality of the Illinois Mandatory Seat belt Use Legislation, 74 Ill. B.J. 290 (1986); Note, The Illinois Seat Belt Law: Should those Who Ride Decide?, 19 John

Marshall L. Rev. 193 (1985); Werber, A Multi-Disciplinary Approach to Seat Belt Issues, 29 Cleve, St. L. Rev. 217, 222 (1980).

Defendants make several arguments concerning the effectiveness of safety belts in reducing injuries and arguments regarding the merits of alternative safety devices such as air bags. Defendants also contend that in some instances safety belts may cause injuries instead of preventing them. We need not consider these arguments, however, since they are proper subjects of discussion for the legislature, not the courts. (Hayden v. County of Ogle (1984), 101 Ill. 2d 413, 421; City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 115; Pozner v. Mauck (1978), 73 Ill. 2d 250, 255.) We believe that the General Assembly could reasonably assume that a law requiring drivers and front-seat passengers to wear safety belts will reduce traffic-related injuries and fatalities. (Wells v. State (1985), A.D.2d , 495 N.Y.S.2d 591; People v. Weber (1985), 129 Misc. 2d 993, 494 N.Y.S.2d 960.) Therefore, we hold that section 12.603.1 does not violate the due process clauses of the State and Federal constitutions. To the extent that People v. Fries (1969), 42 Ill. 2d 446, is inconsistent with our opinion, it is overruled.

Defendant Greene also filed a motion to strike certain portions of the briefs and appendices filed by the State and certain parties amicus curiae. This motion was taken with the case. Our review of the record shows that certain safety statistics relied on by the State and the amicus were not presented in the trial courts. Accordingly, defendant Greene's motion to strike this information is allowed.

For the reasons stated the judgments of the circuit courts of Marion, Effingham, Fayette and Champaign counties in cause Nos. 62719, 62799, 63705 and 63224 are reversed, and said causes are remanded to those respective courts for further proceedings.

Motion allowed;

judgments reversed;

causes remanded.

CLARK, C.J., and SIMON, J., took no part in the consideration or decision of this case.

ID: 86-5.29

TYPE: INTERPRETATION-NHTSA

DATE: 10/09/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Donald L. Anglin

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letter of August 7, 1986, concerning the applicability of our regulations to the repair of fuel tanks. You specifically asked whether our regulations prohibit the repair of automotive fuel tanks made of plastic. As explained below, a dealer or motor vehicle repair shop can make repairs to plastic and other types of vehicle fuel tanks.

Manufacturers must certify that their new vehicles comply with all applicable safety standards. Federal Motor Vehicle Safety Standard No. 301, Fuel System Integrity sets performance requirements for new vehicles with a gross vehicle weight rating of 10,000 pounds or less. Manufacturers of these vehicles are free to use fuel tanks made of any type of material, such as metal or plastic, as long as the fuel system can meet all of the performance requirements of the standard.

Repair of a fuel tank in a new vehicle, which, for example, sustained damage in shipment, would be affected by Standard No. 301. If a fuel tank is repaired prior to a new vehicle being sold for the first time to a consumer, the person making the repairs would be considered a vehicle alterer under our regulation on certification (Part 567, a copy of which is enclosed). As an alterer, the person must certify that the fuel system, as altered, continues to comply with all of the applicable requirements of Standard No. 301.

After a vehicle is first sold to a consumer, repairs to a vehicle are potentially affected by section 108(a)(2)(A) of the Vehicle Safety Act. That section prohibits commercial businesses from knowingly tampering with safety equipment installed on a vehicle in compliance with our standards. However, the agency has not applied the prohibition of that section to the repair of a fuel tank which has been previously installed in a vehicle and damaged in use. The agency has considered the event that damaged the fuel tank and not any subsequent action by a person repairing the damaged fuel tank in a used vehicle, as the event which rendered inoperative the compliance of the fuel tank with the standard. Thus, there is no Federal regulation which would prohibit the repair of a fuel tank which has been damaged in use.

In addition, section 108(a)(2)(A) does not affect vehicle owners, who may themselves alter their vehicles as they please, so long as they adhere to all State requirements. Under Federal law, the owner may repair fuel tanks regardless of whether the repairs adversely affect the fuel system. The agency, however, urges vehicle owners not to take actions that would degrade the performance of required safety features. Please note also that individual States govern the operational use of vehicles by their owners. Therefore, it is within the authority of the States to preclude owners from repairing the fuel systems in their vehicles.

If you need further information, please let me know.

ENC.

DONALD L. ANGLIN

CONSULTING EDITOR McGRAW-HILL BOOK COMPANY

Automotive and Technical Writing

August 7, 1986

Erika Z. Jones Chief Counsel National Highway Traffic Safety Administration

Dear Ms. Jones:

Thank you very much for your comprehensive reply of June 18 to my earlier letter requesting information on Federal regulations pertaining to motor vehicle safety equipment.

Recently, we have seen statements in the trade press and in consumer publications that Federal law prohibits the repair of automotive fuel tanks -- specifically, the repair of automotive fuel tanks made of plastic.

If this is true, would you please send me a copy of the appropriate regulations, and any available related materials.

Thank you once again for your interest and assistance.

DONALD L. ANGLIN

ID: 86-5.3

TYPE: INTERPRETATION-NHTSA

DATE: 08/22/86

FROM: AUTHOR UNAVAILABLE; Stephen P. Wood for Erika Z. Jones; NHTSA

TO: Mr. J. Leon Conner

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. J. Leon Conner Manager Long & Associates, Inc. P.O. Box 691 San Angelo, TX 76902

Dear Mr. Conner:

This responds to your letter seeking an interpretation of the requirements of 49 CFR S575.104, Uniform Tire Quality Grading Standards (UTQGS). Specifically, you asked wether this regulation requises the treadwear testing for a tire size to be conducted only with vehicles that specify the subject tire size either as the original equipment size or as one of the recommended optional tire sizes. The UTQGS does not contain any such provision.

The conditions and procedures to be followed in grading tires for treadwear under the UTQGS are set forth in S575.104(e). That section specifies tire loading conditions and rim dimensional requirements for the vehicles used in the treadwear testing. However, it does not specify that the vehicles used in the treadwear testing can only be used to test tire sizes recommended as either original equipment or optional tires on the vehicle when new. Accordingly, persons testing tires to determine the treadwear grade may mount the tires on any vehicle, provided that the tire and vehicle satisfy all the requirements of S575.104(e), relating to tire construction, inflation pressure, size designation, vehicle loading, and wheel alignment.

You stated in your letter that the UTQGS compliance test procedures, used by this agency for conducting its enforcement testing for treadwear grades, currently specify that tire sizes must be tested on vehicles that specify that size as either original equipment or recommended optional size. This specification may have been adopted after the following language appeared in a 1975 preamble to a final rule establishing the UTQGS:

Several commenters suggested that the rule specify all vehicles in a given convoy be identical, to reduce variations in projected treadlife...Variations in vehicle type, however, do not appear to produce significant variations in treadwear projections. Nevertheless, to minimize such variations, tires will be tested for compliance only on vehicles for which they are available as original equipment or recommended replacement options. 40 FR 23073, at 23076, May 28, 1975.

As explained above, the UTQGS regulation does not specify that the vehicles used in treadwear testing can only be used to test tire sizes recommended as either original equipment or optional tires on the vehicle. The agency's compliance test procedures are only the methods the agency itself uses to determine the appropriate treadwear grade for a tire. Persons outside the agency are not bound by any testing conditions and methods not set forth in the UTQGS itself. Such persons may, therefore, conduct their own testing in a manner different from that specified in NHTSA's compliance test procedures, provided that their testing satisfies all requirements of S575.104(e).

You also stated that the use of different vehicles for treadwear testing of tires will produce measurably different treadwear grades for the tire, even when all the vehicle factors are closely and properly controlled. As quoted above, NHTSA concluded that vehicle-to-vehicle variations "do not appear to produce significant variations in treadwear projections", when it examined this issue in 1975. However, the agency is currently reexamining the effects of vehicle-to-vehicle variations on treadwear projections, particularly with respect to front-wheel vs. rear-wheel drive vehicles and passenger cars vs. light trucks and vans. If you wish to provide some additional data on this subject, please forward the data to Mr. Barry Felrice, Associate Administrator for Rulemaking, at this address. We would be interested in analyzing whatever data form the basis for your belief that our 1975 conclusion was incorrect.

Please feel free to contact Steve Kratzke of my staff, at this address or by telephone at (202) 366-2992, if you have any further questions about our UTQGS.

Sincerely,

Erika Z. Jones Chief Counsel

Ms. Erika Jones, Chief Counsel National Highway Traffic Safety Administration Office Of Chief Counsel, NAO-30 400 Seventh Street, S.W. Washington, D.C. 20500

Subject: Uniform Tire Quality Grading Testing

Dear Ms. Jones:

We are requesting clarification of the UTQG Stnadard relative to selection of test vehicles.

The UTQG Compliance Test Procedure requires that, "the vehicles must specify the tire size to be tested as standard equipment or approved alternate for that vehicle", i.e. government compliance testing will be performed with vehicles selected in this manner. It behooves the tester then to select vehicles in the same manner it would seem.

While outdoor road testing inherently involves a large number of variables it is apparent from our accumulated CMT data that different cars do produce different wear rates for a given set of tires and conditions, even when vehicle factors (wheel alignment, wheel loads, mechanical maintenance) are closely and properly controlled. It is therefore possible to bias the candidate tire grades measurably through selection of the control tire car, the candidate tire car or both. Use of certain larger vehicles produce faster wear of the CMT tires and consequently higher grades for the candidate tire; tested in the same convoy.

If the UTQG Standard allows the tester to choose any car in which he can attain the required wheel loads, manufacturers may seek the tester who can obtain the highest grades.

Hopefully you can clarify the intent of NHTSA on this matter. If we can be of assistance in any way please do not hesitate to call on us.

Sincerely,

J. Leon Conner JLC:bf