ID: 10878

Mr. Musa K. Farmand
Gonz555-B Blanding Boulevard
Orange Park, FL 32073

Dear Mr. Farmand:

This responds to your letter of April 27, 1995. Your letter concerns a law suit in which you represent plaintiffs injured in an automobile accident. In this law suit, the counsel for the defendant has moved to amend his answer to assert that 49 CFR 571.208, paragraph S4.1.5.2(c)(2) requires each state to allow for mitigation of damages in any seat belt use law and that paragraph preempts the Florida mandatory seat belt law. According to your letter, the Florida law "does not allow a mitigation of damages defense with respect to an alleged failure to wear a seat belt." As explained below, the National Highway Traffic Safety Administration agrees with you that the Florida safety belt use law is neither expressly nor impliedly preempted by Federal law.

Purpose of Paragraph S4.1.5.2(c)(2)

Before discussing the issue of preemption, I want to discuss the background and purpose of Paragraph S4.1.5.2(c)(2). That paragraph was added to Standard No. 208, Occupant Crash Protection (49 CFR 571.208) as part of a final rule issued July 17, 1984 concerning automatic restraints (49 FR 28962). That final rule required all new cars to have automatic protection (air bags or automatic belts) starting in the 1990 model year. The final rule included a provision that the automatic restraint requirement would be rescinded if the Secretary of Transportation determined, not later than April 1, 1989, that a sufficient number of States had enacted belt use laws meeting certain minimum criteria to cover at least two-thirds of the U.S. population (paragraph S4.1.5). Under S4.1.5, the Secretary was not required to make any determination about any State safety belt laws. In fact, the Secretary never did so, in part because not enough States adopted mandatory seat belt use laws of any

sort prior to April 1, 1989. Because no determination was made under S4.1.5, the automatic restraint requirements are now in effect for all passenger cars.

The minimum criteria were set forth in S4.1.5.2 of Standard No. 208 . One of the criteria was "a provision specifying that the violation of the belt usage requirement may be used to mitigate damages..." (S4.1.5.2(c)(2)). However, S4.1.5 neither purported to require nor was intended to require States to enact safety belt use laws. In addition, S4.1.5 did not require that any State safety belt use laws had to incorporate the minimum criteria of S4.1.5.2. Paragraph S4.1.5 merely provided that the Secretary would rescind the automatic restraint requirement if he or she determined that a sufficient number of States enacted laws which met the criteria of S4.1.5.2 by April 1, 1989.

Preemption

The Florida safety belt use law is not and never has been either expressly or impliedly preempted by Federal law.

Standard No. 208 was issued under 49 U.S.C. Chapter 301 which expressly preempts state laws only to the extent provided by section 30103. That section provides for the express preemption of State motor vehicle safety standards that are not identical to Federal standards. However, the Florida seat belt law is not a motor vehicle safety standard within the meaning of Chapter 301, since it does not regulate motor vehicle or motor vehicle equipment performance. Accordingly, the Florida law is not expressly preempted.

The Florida law is not impliedly preempted because (1) Congress has not occupied the field of regulation of the behavior of motor vehicle occupants; and (2) the Florida seat belt law does not conflict with any Federal law or interfere with the objectives of Federal law.

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

Sincerely,

John Womack Acting Chief Counsel

ref:208 d:5/9/95 Your letter correctly notes that this provision was deleted from Standard No. 208 by a final rule issued on September 2, 1993 (58 FR 46551).

ID: 86-5.44

TYPE: INTERPRETATION-NHTSA

DATE: 11/13/86

FROM: FRANCIS ARMSTRONG -- DIRECTOR OFFICE OF VEHICLE SAFETY COMPLIANCE ENFORCEMENT NHTSA

TO: PETER CAMERON

TITLE: NEF 32GSH

ATTACHMT: ATTACHED TO LETTER DATED 08/10/88 TO PETER CAMERON FROM ERIKA Z. JONES, REDBOOK A32; LETTER DATED 06/01/88 TO ERIKA Z JONES FROM PETER CAMERON; OCC - 2120

TEXT: Dear Mr. Cameron:

This is in response to your recent request for information concerning legislation and regulations pertaining to the manufacture/importation of motor vehicles.

As a general rule, all motor vehicles must comply with the applicable Federal Motor Vehicle Safety Standards (FMVSS) in effect on the date of manufacture. Refer to the enclosed Form HS-189 for the general requirements of the FMVSS.

Section 114 (15 USC 1403) of the National Traffic and Motor Vehicle Safety Act of 1966 (th Act) and Title 49, Code of Federal Regulations, Part 567, (49 CFR 567), require that the manufacturer permanently affix a tag or label to a motor vehicle certifying that it conforms to all applicable FMVSS.

If you determine in good faith that any vehicle manufactured by you does not conform with an applicable FMVSS or contains a safety-related defect, section 151 (15 USC 1411) of the Act requires that you furnish notification to the Secretary and to owners in accordance with section 153 (15 USC 1413) and to remedy without cost the failure to conform or defect in accordance with section 154 (15 USC 1414).

You should also note that under 49 CFR 566, you are required to submit certain idntifying information and a description of your product to the Administrator, National Highway Traffic Safety Administration.

Prior to offering a motor vehicle or item of motor vehicle equipment form importation into the United States, a foreign manufacturer is required to register an "Agent-for-Service" of process as set forth in 49 CFR 551 45 as well as furnishing the information required by 49 CFR 566.

Federal Regulations concerning anti-pollution emission control devices are not the responsibility of the Department of Transportation. For guidance in this area, it is suggested that you write the Environmental Protection Agency, Director, Mobile Source Enforcement Division, 401 M Street, S.W., Washington, DC 20460.

[If at the time of importation the vehicle is in a kit form items of equipment contained therein for which there is an applicable standard must be certified at the time of importation. They are FMVSS Nos. 106, 109, 116, 205, 209, 211, and 213.]

Generally, completely assembled kit cars must meet all applicable FMVSS in effect on the date of manufacture in order to be imported into the United States.

You are advised to carefully examine the Act, the FMVSS, as well as other regulations listed below to insure that you fully understand the extent of the responsibilities you incur upon the manufacture of a motor vehicle or item of motor vehicle equipment for which there is an applicable FMVSS.

Enclosed for your information and guidance is a copy of the following:

1. The National Traffic and Motor Vehicle Safety Act of 1966 (15 USc 1381 et seq.)

2. 49 CFR 555, "Temporary Exemption from Motor Vehicle Safety Standards"

3. 49 CFR 567, "Certification"

4. 19 CFR 12.80, "Importation Regulations"

5. "Where to Obtain Motor Vehicle Safety Standards and Regulations"

6. Form HS-189, "General Requirements of FMVSS"

7. Two Letters of interpretation regarding kit cars.

8. Information for New Manufacturers of Motor Vehicle and Motor Vehicle Equipment.

Should you have other questions, please contact Mr. George Shifflet, a member of my staff, on telephone number 202-426-3876.

Sincerely,

ID: 23329ogm

Mr. Gary Rudnik
Practical Innovations
1900 Edmunds
Brush, CO 80723






Dear Mr. Rudnik:





This is in response to your letter requesting NHTSA "approval" of a new product being introduced by your company. As described in the informational materials included with your letter, the product is a brake controller designed to supply and modulate electric power supplied to trailer brakes. This "EZ Brakes" device is plugged into the tow vehicle wiring harness through a standard trailer connector and activates the electric brakes of the trailer when the tow vehicle's brake lights illuminate as a result of the brake pedal being depressed.

I am pleased to have this opportunity to explain our regulations to you.The National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act ("Safety Act"), it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable standards issued by this agency. A manufacturer then certifies that its vehicles or equipment comply with applicable standards.

NHTSA has issued several standards applicable to brake systems: Standard No. 105, Hydraulic Brake Systems; Standard No. 121, Air Brake Systems; and Standard No. 135, Passenger Car Brake Systems. Standard No. 105 specifies requirements for hydraulic service brake and associated parking brake systems, and applies to new passenger cars, multipurpose passenger vehicles, trucks, and buses equipped with hydraulic brake systems. Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems. Standard No. 135 specifies requirements for hydraulic service brake and associated parking brake systems for new passenger cars built after September 1, 2000 and for new multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating of 3,500 kilograms (7,716 pounds) or less built after September 1, 2002. Of these three standards, Standard No. 121 is the only standard that applies to trailers.

Standard No. 121 (49 CFR 571.121) specifies performance requirements for trucks, buses and trailers equipped with air brake systems. The purpose of the standard is to insure safe braking performance of vehicles under normal and emergency conditions. We note, however, that Standard No. 121 only applies to vehicles with air brake systems. An air brake system is defined in S4 of the Standard as follows:

Air brake system means a system that uses air as a medium for transmitting pressure or force from the driver control to the service brake, including an air-over-hydraulic brake subsystem, but does not include a system that uses compressed air or vacuum only to assist the driver in applying muscular force to hydraulic or mechanical components.

The device described in your letter appears to use electricity to actuate or control the brakes of a trailer. While the driver may have the ability to activate the electric brake controller through depressing the tow vehicle brake pedal with enough force to activate the tow vehicle brake lights, air is not used as a medium for transmitting pressure or force from the driver control to the service brake on the trailer. Accordingly, the system you describe is not, under Standard No. 121, an air brake system and is not subject to the requirements of that Standard.

Even though your product is not regulated by Standard No. 121, as an accessory or an addition to a motor vehicle, it is "motor vehicle equipment" as we define it (49 U.S.C. 30102(a)(7)(B)). This means that, if either you or we determine that it contains a safety-related defect, you, as its manufacturer, must notify and remedy the defect as required by 49 U.S.C. 30118-30120.

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

Sincerely,

John Womack
Acting Chief Counsel

ref:121
d.10/22/01

ID: 86-3.11

TYPE: INTERPRETATION-NHTSA

DATE: 05/02/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Bob Carlson

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Bob Carlson 8305 29th Avenue, N.W. Seattle, WA 98117

This responds to your January 23, 1986 letter inquiring about Federal motor vehicle safety standards applicable to your projected sale of aftermarket windshield wiper systems for trucks.

Under the National Traffic and Motor Vehicle Safety Act, this agency has issued Federal Motor Vehicle Safety Standard No. 104, Windshield Wiping and Washing Systems, applicable to new motor vehicles. As you note, this standard applies to trucks, as well as other types of vehicles. In your letter, you ask which performance requirements apply to wiping systems for trucks.

Under S4. Requirements, new trucks are required to have a power-driven windshield wiping system that meets the requirements of S4.1.1. The frequency requirements in S4.1.1 apply to trucks, but the wiped area requirements of S4.1.2 apply only to passenger cars. Trucks must also have a windshield washing system that meets the requirements of SAE Recommended Practice J942, November 1965, except that the effective wipe pattern is considered to be "the pattern designed by the manufacturer for the windshield wiping system on the exterior surface of the windshield glazing." Therefore, the vehicle manufacturer establishes the wipe pattern of the system.

If a new truck equipped with your wiper system did not comply with Standard No. 104 due to some aspect of that system, the sale of that truck to the public would be a violation of the prohibition in section 108(a)(1)(A) of the Act against the sale of noncomplying vehicles.

I hope this information is helpful to you.

Sincerely,

Erika Z. Jones

Chief Counsel Chief Legal Counsel National Highway Traffic Safety Administration 400 7th St S W Washington, DC 20590 Mail Code NOA-30

RE: Wiper System Requirements

Gentlemen:

My name is Bob Carlson. I am a salesman for Sea-Tac Ford Truck Sales, Inc; a heavy duty truck store in Seattle, Washington. I am currently developing a new "after market" wiper system for the "L" Series Louisville Ford truck line (literature enclosed).

While I have read FMVSS 104, SAEJ 903A and SAEJ 198, there appears, at least to me anyway, some overlap and confusion as to what test standards will apply to my wiper system developed for use on heavy duty Louisville trucks. therefore request your guidance as to specifically what parts all these federal safety standards will apply. Specifically I will need to know what, if any, a,b,c, zone-wiped area coverages should a person use to check the windshield wiper system. Paragraph S2 in FMVSS 104 states that the standard applies to trucks. However, in Paragraph S 4.1.2, the recommended test procedures and areas specified relate to passenger cars (see tables 1-C FMVSS 104). Now the question becomes. given the fact that you have specified angles in tables 1-4, what then does a person use, if any, for trucks? Do I use the angles specified in the table from J 198 or what?

If the answer is very simple due to the fact that I have misread something or whatever, I would appreciate a phone call either at home or at work using the following numbers:

work: (206) 763 9100; 1-800-426-8305 hours: 8:00 A.m. to 6:00 p.m. PST home: (206) 783 7590 hours: 5:30 a.m. to 7:00 a.m. or 7:00 p.m. to 9:00 p.m. PST

Thank you for your assistance.

Sincerely,

Bob Carlson 8305 29th Ave N W Seattle, WA 98117

ID: nht95-2.73

TYPE: INTERPRETATION-NHTSA

DATE: May 9, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Musa K. Farmand -- Gonzalez & Farmand, P.A.

TITLE: NONE

ATTACHMT: ATTACHED TO 04/27/95 LETTER FROM MUSA K. FARMAND TO MARY VERSAILLES

TEXT: Dear Mr. Farmand:

This responds to your letter of April 27, 1995. Your letter concerns a law suit in which you represent plaintiffs injured in an automobile accident. In this law suit, the counsel for the defendant has moved to amend his answer to assert that 49 CFR 571 .208, paragraph S4.1.5.2(c)(2) requires each state to allow for mitigation of damages in any seat belt use law and that paragraph preempts the Florida mandatory seat belt law. According to your letter, the Florida law "does not allow a mitigation of dam ages defense with respect to an alleged failure to wear a seat belt." As explained below, the National Highway Traffic Safety Administration agrees with you that the Florida safety belt use law is neither expressly nor impliedly preempted by Federal law.

Purpose of Paragraph S4.1.5.2(c) (2)

Before discussing the issue of preemption, I want to discuss the background and purpose of Paragraph S4.1.5.2(c)(2). That paragraph was added to Standard No. 208, Occupant Crash Protection (49 CFR 571.208) as part of a final rule issued July 17, 1984 co ncerning automatic restraints (49 FR 28962). That final rule required all new cars to have automatic protection (air bags or automatic belts) starting in the 1990 model year. The final rule included a provision that the automatic restraint requirement would be rescinded if the Secretary of Transportation determined, not later than April 1, 1989, that a sufficient number of States had enacted belt use laws meeting certain minimum criteria to cover at least two-thirds of the U.S. population (paragraph S 4.1.5). Under S4.1.5, the Secretary was not required to make any determination about any State safety belt laws. In fact, the Secretary never did so, in part because not enough States adopted mandatory seat belt use laws of any sort prior to April 1, 1 989. Because no determination was made under S4.1.5, the automatic restraint requirements are now in effect for all passenger cars.

The minimum criteria were set forth in S4.1.5.2 of Standard No. 208. n1 One of the criteria was "a provision specifying that the violation of the belt usage requirement may be used to mitigate damages . . ." (S4.1.5.2(c)(2)). However, S4.1.5 neither pur ported to require nor was intended to require States to enact safety belt use laws. In addition, S4.1.5 did not require that any State safety belt use laws had to incorporate the minimum criteria of S4.1.5.2. Paragraph S4.1.5 merely provided that the S ecretary would rescind the automatic restraint requirement if he or she determined that a sufficient number of States enacted laws which met the criteria of S4.1.5.2 by April 1, 1989.

n1 Your letter correctly notes that this provision was deleted from Standard No. 208 by a final rule issued on September 2, 1993 (58 FR 46551).

Preemption

The Florida safety belt use law is not and never has been either expressly or impliedly preempted by Federal law.

Standard No. 208 was issued under 49 U.S.C. Chapter 301 which expressly preempts state laws only to the extent provided by section 30103. That section provides for the express preemption of State motor vehicle safety standards that are not identical to Federal standards. However, the Florida seat belt law is not a motor vehicle safety standard within the meaning of Chapter 301, since it does not regulate motor vehicle or motor vehicle equipment performance. Accordingly, the Florida law is not express ly preempted.

The Florida law is not impliedly preempted because (1) Congress has not occupied the field of regulation of the behavior of motor vehicle occupants; and (2) the Florida seat belt law does not conflict with any Federal law or interfere with the objectives of Federal law.

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

ID: curtain22830

Mr. Natale De Pasquale
ITI Industriale
s.r.l. Via Fratelli Bandiera
13-20016 PERO (MILANO)
ITALY





Dear Mr. De Pasquele:

This responds to your letter asking for information about the application of United States safety standards to a "rear window curtain for cars in general." You do not mention, however, the purpose of the attachment, whether the curtain will be made available to original equipment manufacturers and/or marketed as an aftermarket product for installation on used vehicles, or provide a thorough description of the product. Further, you indicate that ITI Industriale intends to import this product into the United States.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. The following represents our opinion regarding the applicability of our laws to your product based on the facts set forth in your letter.

Installation in New Vehicles

A manufacturer of a new vehicle must certify that its vehicle meets all applicable Federal motor vehicle safety standards. Any person who manufactures or sells a new vehicle which does not conform to any safety standard is subject to civil penalties and recall action under our statute.

NHTSA has issued FMVSS No. 205, Glazing materials, to establish performance and location requirements for glazing in each new motor vehicle. FMVSS No. 205 incorporates an industry standard, the American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways (ANSI Z26.1)." Under FMVSS No. 205 and the ANSI standard, glazing for use at levels intended for driving visibility must meet all of the requirements of the standard, including those on light transmittance. FMVSS No. 205 and ANSI

Z26.1 apply a 70 percent light transmittance requirement to areas of glazing that are requisite for driving visibility (which includes all windows in passenger cars).

Installation of your curtains as proposed would not cause a noncompliance with FMVSS No. 205 because the test procedures do not incorporate an in-vehicle test, instead they contemplate testing of only the glazing itself. Therefore, your curtain need not comply with the standard either by itself (because it does not meet the definition of glazing) or in combination with the windows, assuming that it is not attached to the window. However, if the curtains were installed into the glazing in any manner, e.g. between two layers of glass, the combination of curtain and glass would be considered a multiple glazed unit and would have to meet the standard.

In addition, there are a number of other standards that might be affected by installation of the component. In particular, I would like to draw your attention to FMVSS No. 103, Windshield defrosting and defogging systems, FMVSS No. 212, Windshield mounting, FMVSS No. 219, Windshield zone intrusion, FMVSS No. 201, Occupant protection in interior impact, and FMVSS No. 302 , Flammability of interior materials. You should carefully review these and all other FMVSSs to determine how the product would affect a vehicle's conformance with these standards.

As an Aftermarket Item of Equipment

As far as we can tell from your letter, your product appears to be an item of motor vehicle equipment regulated by NHTSA. ⁽¹⁾ Your curtain is an accessory because it was presumably designed with the expectation that a substantial portion of its expected use will be with motor vehicles. (We make this assumption because you designed the product for rear windows in "cars"). Further, the curtain appears to be intended to be purchased and principally used by ordinary users of motor vehicles.

While a rear window curtain is an item of motor vehicle equipment, NHTSA has not issued any FMVSSs establishing performance standards directly applicable to this product if it were sold directly to consumers for installation on used vehicles. However, the manufacturer, whether your client or a licensee, is subject to the requirements of 49 U.S.C. 30118-30120, which set forth the notification and remedy procedures for products with defects related to motor vehicle safety. Thus, if NHTSA or the manufacturer determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the product is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

The installation of a rear window curtain by a commercial entity is also subject to other restrictions. Our statute at 49 U.S.C. 30122 provides that a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. Therefore, the rear window curtain could not be installed by any of those entities if such use would adversely affect the ability of a vehicle to comply with any FMVSS. You should carefully review the FMVSSs, particularly those listed above, to determine whether installation of your rear window curtain would affect a vehicle's compliance with the standards. ⁽²⁾

I note that the Federal Motor Carrier Safety Administration has jurisdiction over interstate motor carriers operating in the United States. You should contact that Administration at (202) 366-2519 for information about any requirements that may apply to your product. In addition, states have the authority to regulate the use and licensing of vehicles operating within their jurisdictions and may have restrictions on shade bands. Therefore, you should check with the Department of Motor Vehicles in any state in which the equipment will be sold or used.

Also, there is a procedural regulation that you need to meet to import the curtain into the United States. 49 CFR Part 551, "Procedural Rules," requires the actual manufacturer of foreign-manufactured motor vehicle equipment to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. The designation of the agent for the service of process must contain the following six items in order to be valid under section 551.45:

1. A certification that the designation is valid in form and binding on the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made;

2. The full legal name, principal place of business, and mailing address of the manufacturer;

3. Marks, trade names, or other designations of the origin of any of the manufacturer's products which do not bear its name;

4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;

5. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm, or a U.S. corporation; and

6. The full legal name and address of the designated agent.

In addition, the designation must be signed by one with authority to appoint the agent, and the signer's name and title should be clearly indicated beneath his or her signature. This designation should be mailed to the address shown in section 551.45(b).

For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:205
d.5/9/01






---

1. Our statute defines "motor vehicle equipment," in relevant part, as any system, part, or component "sold ... as an accessory or addition to a motor vehicle" (49 U.S.C. 30102(a)(7)(B)). An item of equipment is an accessory if it meets the following criteria:

a. A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and

b. It is purchased or otherwise acquired, and principally used by ordinary users of motor vehicles.

2. The "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner. However, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles.

ID: 10878r

Mr. Musa K. Farmand
Gonz555-B Blanding Boulevard
Orange Park, FL 32073

Dear Mr. Farmand:

This responds to your letter of April 27, 1995. Your letter concerns a law suit in which you represent plaintiffs injured in an automobile accident. In this law suit, the counsel for the defendant has moved to amend his answer to assert that 49 CFR 571.208, paragraph S4.1.5.2(c)(2) requires each state to allow for mitigation of damages in any seat belt use law and that paragraph preempts the Florida mandatory seat belt law. According to your letter, the Florida law "does not allow a mitigation of damages defense with respect to an alleged failure to wear a seat belt." As explained below, the National Highway Traffic Safety Administration agrees with you that the Florida safety belt use law is neither expressly nor impliedly preempted by Federal law.

Purpose of Paragraph S4.1.5.2(c)(2)

Before discussing the issue of preemption, I want to discuss the background and purpose of Paragraph S4.1.5.2(c)(2). That paragraph was added to Standard No. 208, Occupant Crash Protection (49 CFR 571.208) as part of a final rule issued July 17, 1984 concerning automatic restraints (49 FR 28962). That final rule required all new cars to have automatic protection (air bags or automatic belts) starting in the 1990 model year. The final rule included a provision that the automatic restraint requirement would be rescinded if the Secretary of Transportation determined, not later than April 1, 1989, that a sufficient number of States had enacted belt use laws meeting certain minimum criteria to cover at least two-thirds of the U.S. population (paragraph S4.1.5). Under S4.1.5, the Secretary was not required to make any determination about any State safety belt laws. In fact, the Secretary never did so, in part because not enough States adopted mandatory seat belt use laws of any

sort prior to April 1, 1989. Because no determination was made under S4.1.5, the automatic restraint requirements are now in effect for all passenger cars.

The minimum criteria were set forth in S4.1.5.2 of Standard No. 208 . One of the criteria was "a provision specifying that the violation of the belt usage requirement may be used to mitigate damages..." (S4.1.5.2(c)(2)). However, S4.1.5 neither purported to require nor was intended to require States to enact safety belt use laws. In addition, S4.1.5 did not require that any State safety belt use laws had to incorporate the minimum criteria of S4.1.5.2. Paragraph S4.1.5 merely provided that the Secretary would rescind the automatic restraint requirement if he or she determined that a sufficient number of States enacted laws which met the criteria of S4.1.5.2 by April 1, 1989.

Preemption

The Florida safety belt use law is not and never has been either expressly or impliedly preempted by Federal law.

Standard No. 208 was issued under 49 U.S.C. Chapter 301 which expressly preempts state laws only to the extent provided by section 30103. That section provides for the express preemption of State motor vehicle safety standards that are not identical to Federal standards. However, the Florida seat belt law is not a motor vehicle safety standard within the meaning of Chapter 301, since it does not regulate motor vehicle or motor vehicle equipment performance. Accordingly, the Florida law is not expressly preempted.

The Florida law is not impliedly preempted because (1) Congress has not occupied the field of regulation of the behavior of motor vehicle occupants; and (2) the Florida seat belt law does not conflict with any Federal law or interfere with the objectives of Federal law.

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

Sincerely,

John Womack Acting Chief Counsel

ref: 208 d:6/14/95 Your letter correctly notes that this provision was deleted from Standard No. 208 by a final rule issued on September 2, 1993 (58 FR 46551).

ID: nht76-1.42

DATE: 12/01/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Truck Body and Equipment Association

TITLE: FMVSS INTERPRETATION

TEXT: This responds to the Truck Body and Equipment Association's November 8, 1976, question whether any provision of Standard No. 120, Tire Selection and Rims for Motor Vehicles Other than Passenger Cars, prohibits the certification of a vehicle following the addition of an axle system (typically known as a "tag" or "pusher" axle) that is not equipped with tires or rims at the time of sale and delivery to the first purchaser for purposes other than resale.

The answer to your question is no. The requirement of S5.1.1 that ". . . each vehicle equipped with pneumatic tires for highway service shall be equipped with tires that meet [specified requirements] . . . . " prohibits the installation of tires that do not meet certain performance requirements, but it is not a requirement that tires be fitted to every axle of a vehicle prior to certification and sale.

I would like to point out that @ 567.4 (g) (4) of Part 567, Certification, requires that a gross axle weight rating be assigned to each axle system. Section S5.1.2 of Standard No. 120 specifies that the GAWR be not more than the sum of the maximum load ratings of the tires fitted to the axle in question. While the agency interprets Standard No. 120 to permit the assignment of a GAWR on the basis of tires listed on the certification plate for that GAWR, the assignment of an arbitrarily high (or low) GAWR for purposes such as avoiding a Federal motor vehicle safety standard (such as Standard No. 121, Air Brake Systems), would constitute a violation of @ 108(a)(1)(D) of the National Traffic and Motor Vehicle Safety Act:

@ 108(a)(1) No person shall

(A)

(c) Fail to issue a certificate required by section 114 of this title, or issue a certificate to the effect that a motor vehicle or item of motor vehicle equipment conforms to all applicable Federal motor vehicle safety standards, if such person in the exercise of due care has reason to know that such certificate is false or misleading in a material respect;

SINCERELY

TRUCK BODY AND EQUIPMENT ASSOCIATION, INC

November 8, 1976

Frank A. Berndt Office of Chief Counsel National Highway Traffic Safety Administration

FMVSS 120 Tire Selection and Rims for Vehicles Other Than Passenger Cars states in S 5.1.1 that:

"Except as specified in S 5.1.3 each vehicle equipped with pneumatic tires for highway service shall be equipped with tires that meet the requirements of Standards 109 or 119."

It is possible to read this statement to require that all axles must be equipped with tires and rims prior to certification. By prohibiting the shipping of bare axles, this interpretation would cause the many intermediate and final stage manufacturers represented by the TBEA a great hardship.

The installation of auxiliary axles on incomplete vehicles comprises a large portion of the work performed by our industry. The twenty-five to thirty thousand tags (added axle behind the OEM rear axle) and pushers (added axle-ahead of the OEM rear axle) are installed on a truck chassis to provide increased carrying capacity or to more evenly distribute the payload's weight onto the road surface. The installers of these tags and pushers are generally small business men engaged in the adaption of standard commercial truck chassis to vocational vehicles ie fire apparatus, dump trucks, refuse trucks . . . . .These small companies are not in business to sell truck tires and rims. An inventory of every common truck tire size times every truck tire manufacturer would utilize more floor space than many of our companies have to begin with.

In the past, it has been common practice to install an additional axle on truck chassis and to ship the completed vehicle less the new tires. Upon delivery, the end user would contract a tire dealer to install the required tire and rim combination to provide the rated GAWR. Tire sizing is not new to the tire dealer, because he is also the same individual responsible for supplying the replacement tires needed to comply with the GVWR.

Present certification requirements allow for the posting of multiple GAWRs and GVWRs when the appropriate tire sizes are also listed.

Are we correct in assuming that additional axles can still be installed and delivered to the end user less tires, provided that the new GAWR listed for the new axle reflects the tire and rim size(s) needed for the specific rating(s)?

Byron A. Crampton Manager of Engineering Services

ID: 7171

Mr. Michael Love
Manager, Compliance
Porsche Cars North America, Inc.
P.O. Box 30911
Reno, Nevada 89520-3911

Dear Mr. Love:

This responds to your letter of April 3, 1992, requesting concurrence by this Office in your interpretation of the requirements of Standard No. 108 for the location of center highmounted stop lamps.

Porsche wishes to install a center lamp on the movable spoiler of its 911 Carrera, a configuration previously approved by this Office providing that all photometric and visibility requirements are met. However, S5.3.1.8 of Standard No. 108 requires that "If the lamp is mounted below the rear window, no portion of the lens shall be lower than 6 inches below the rear window on convertibles, or 3 inches on other passenger cars." Although Porsche's intended center lamp meets this requirement with the spoiler in the extended position (when the car reaches 45 to 55 mph and slows to 9 to 12 mph), at other times, when the spoiler is lowered, the center lamp would be 7.5 inches below the window on the coupe, and 9.5 inches for the convertible.

Nevertheless, you believe that this may be acceptable. You cite an opinion rendered Mazda in which NHTSA did not object to center lamps mounted on tailgates because, as we advised Mazda, the center lamp is a "supplementary" lamp, and that "Even if the deck, hatch, or tailgate upon which it is mounted should be open, following drivers may still observe the signals of the primary stop lamps. . ." You further quote NHTSA's frequently repeated advisory that "Compliance of a vehicle is determined with respect to its normal driving position. . . ," and argue that Porsche's design "fulfills the spirit of the height requirements under all conditions" and the height requirement itself "under a majority of 'normal driving conditions.'" You further argue that even in the down position the triangular relationship between the center lamp and the stop lamps is retained. Finally, you argue that the proposed lamp conforms with NHTSA's philosophy to make Standard No. 108 more performance-oriented "by fulfilling the photometric requirements at all positions."

I am sorry that we cannot concur in your interpretation. When we judge whether a vehicle meets the location and visibility requirements of Standard No. 108, we determine compliance of the vehicle in what appears to us to be its normal operating or driving position. The fact that the vehicle may not comply under all conditions of operation is, of course, of concern to us, but we try to weigh the realities of vehicle design and usage against the need of the public for safety. In the Mazda interpretation, there was no question that the vehicle as manufactured would comply with the locational requirement for center lamps when the tailgate was closed. The "normal driving position" of a vehicle with a tailgate is with the tailgate in the closed position, and use of a vehicle with the tailgate not closed is likely to be infrequent compared with its use with the tailgate closed. In another interpretation, rendered years ago, the fact that a vehicle with hydraulic suspension would not meet the minimum height requirements for headlamps with the vehicle at rest was considered a technical noncompliance only because by the time the vehicle was in its normal operating condition (with the engine running and the car ready to move into the stream of traffic), the suspension had raised the vehicle to a height where the headlamps exceeded the minimum height requirements.

By contrast, the center lamp on the Carerra will not meet the locational requirements from a state of rest up to a minimum of 45 mph, that is to say, under low-speed urban driving conditions where the center lamp is most likely to achieve its purpose of reducing the frequency and severity of rear end impacts. This, to us, is the "normal operating position" of the Carerra with respect to the location of the proposed center lamp.

I would like to close by pointing out that the agency went to a considerable extent in considering the comments of manufacturers before adopting the requirements of S5.3.1.8, in order to minimize design restrictions consistent with safety. NHTSA proposed three alternative locations, and adopted one that was less restrictive than any of the alternatives. Subsequently, pursuant to petitions for reconsideration by vehicle manufacturers, NHTSA relaxed the location requirements of S5.3.1.8 even further.

Sincerely,

Paul Jackson Rice Chief Counsel ref:108 d:4/27/92

ID: 77-3.30

TYPE: INTERPRETATION-NHTSA

DATE: 07/18/77

FROM: AUTHOR UNAVAILABLE; Robert L. Carter; NHTSA

TO: Michelin Tire Corporation

TITLE: FMVSR INTERPRETATION

TEXT: This responds to Michelin's March 23, 1977, letter concerning its February 20, 1976 petition for reconsideration of Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. Your petition for reconsideration was responded to on February 7, 1977 (42 FR 7140). By this letter, you attempt to resubmit your petition for reconsideration.

Petitions for reconsideration must be received by the agency within 30 days of the publication of a notice. Since the resubmission of your petition is untimely, it has been considered a petition for rulemaking as required by Part 553.35 of our regulations (Code of Federal Regulations, Volume 49). The National Highway Traffic Safety Administration (NHTSA) denies your requested rulemaking.

Your petition suggests that consumers will be confused by the tire label information if the vehicle is not equipped with the tires identified on the label. The agency has determined that confusion will be minimized by the use of the optional heading "Suitable Tire-Rim Choice."

Your petition raises a second problem concerning tires of identical size designations manufactured by different companies. These tires may have different inflation pressures even though their sizes are identical. The agency understands that this difference in inflation pressure could result in confusion. Manufacturers, however, can avoid this problem through the use of the manufacturer's name on the tire information label as part of the tire information. Use of the manufacturer's name on the label should distinguish between two otherwise similar tires.

SINCERELY,

MARCH 23, 1977

Docket Section National Highway Traffic Safety Administration

Re: Petition for Reconsideration

Docket No. 71-19; Notice 6

Part 567 - Certification

Docket No. 75-32; Notice 2

Part 571 - Federal Motor Vehicle Safety Standard 120 Tire Selection and Rims for Motor Vehicles other than Passenger Cars We are writing regarding your response to our petition for re-consideration of FMVSS 120 which we submitted February 20, 1976, wherein we requested deletion of the requirement that tire information appear on the certification label. It is our contention that many consumers upon seeing this label will be led to believe that the tires listed are the only tires that can be legally used on the vehicle and that the inflation pressures on the label are the required operating pressures for the tires.

In addition, the inclusion of tire pressures on the FMVSS 120 certification label will be especially confusing since tires of the same size designation can require different pressures for the same load carrying capacity.

In the response to our petition, which appeared in the Federal Register Vol. 42, No. 25 dated Monday, February 7, 1977, it is stated that it is the agency's view that any possibility of confusion can easily be avoided by an indication that the tire designation represents a radial tire, so that a person substituting a non-radial tire size with the same designation is aware that the two tires are not identical.

However, we wish to point out to the agency that we were not only referring to tires of different constructions but also to tires of the same construction. For example, a Michelin 10.00R20 LR G radial tire carrying a tire load of 6040 lbs. requires 100 psi whereas a 10.00R20 LR G radial tire standardized by the American Tire and Rim Association requires 105 psi for the same load.

Since FMVSS 119 does not require tires of the same size designation to have identical load/inflation values, the fact is that many Michelin tires have different pressure requirements than T&RA tires of the same size -- designations, even though they are both radial tires. This fact could, in some cases, cause users to underinflate their tires based on the inflation pressure indicated on the certification label.

We therefore re-submit our petition for re-consideration and once again urge the agency to reconsider the necessity of requiring information on the certification label that will lead to a great deal of confusion. We request that the requirement that tire information appear on the certification label be deleted.

MICHELIN TIRE CORPORATION Technical Group

John B. White Engineering Manager Technical Information Dept.