ID: nht92-5.19

DATE: July 13, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Jeffrey Puentes -- President, Sacramento Registration Service

TITLE: None

ATTACHMT: Attached to letter dated 6/2/92 from Jeffrey Puentes to Chief Council, NHTSA (OCC 7402)

TEXT:

This responds to your request for information on laws and regulations administered by this agency that would apply to motorcycle frames, a product that your client wishes to manufacture and sell. Since motorcycle frames would constitute "motor vehicle equipment," the product would be subject to NHTSA's jurisdiction as follows.

Your letter stated that your client intends the frames to be sold to the "retail public" and to be used to replace frames of damaged Harley Davidson motorcycles. In a telephone conversation with Dorothy Nakama of my staff, you stated that your client is a domestic manufacturer, and the term "serial number" in your letter meant vehicle identification numbers (VINs), as specified by this agency.

The National Traffic and Motor Vehicle Safety Act (the Safety Act) authorizes this agency to regulate "motor vehicles" and items of "motor vehicle equipment." Section 102(4) of the Safety Act (15 U.S.C. 1391(4)) defines "motor vehicle equipment," in part, as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component ...

In your letter, you stated that your client intends its motorcycle frames to be used to replace frames in damaged motorcycles. Thus, the motorcycle frames would be "motor vehicle equipment" since they are "similar parts" that will be "sold for replacement" of a part.

If your client's motorcycle frames should be installed into a motorcycle by a commercial business, Section 108(a)(2)(A) of the Safety Act could affect such installations. That section of the Act requires manufacturers, distributors, dealers, and motor vehicle repair businesses to ensure that they do not knowingly render inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal Motor Vehicle Safety Standard (FMVSS).

The above-named businesses could sell the motorcycle frames but could not install them if the installation would adversely affect a motorcycle's compliance with any of the applicable FMVSS's. In the first instance, it would be the responsibility of these entities to determine whether there is any possibility of such an effect.

The prohibitions of Section 108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her motorcycle. Thus, a motorcycle owner would not violate the Safety Act by replacing the motorcycle

frame, even if doing so would adversely affect some safety feature in his or her motorcycle.

Manufacturers of motor vehicle equipment such as motorcycle frames are also subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either your client's company or this agency determines that a safety-related defect exists in the motorcycle frame, that company as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the product so that the defect is removed; or (2) replace the product with identical or reasonably equivalent products which do not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than 8 years before the notification campaign.

You also asked about vehicle identification numbers (VINs) (referred to in your letter as "serial numbers") and whether motorcycle frames must be identified with VINs. As you may be aware, Federal Motor Vehicle Safety Standard No. 115; Vehicle identification number - basic requirements specifies that vehicles manufactured in one or more stages must have a VIN assigned by the manufacturer. Your client is a motorcycle frame manufacturer, not a motor vehicle manufacturer. Therefore, your client should not assign VINs to the motorcycle frames that it manufactures. Please note, however, that NHTSA regulations would not preclude your client from assigning "serial numbers" to the frames it manufactures, if the numbers are for its own inventory, recordkeeping, or other internal purposes.

You further requested information about laws regulating retail businesses that may affect your client. Other than the matters that have previously been discussed in this letter, NHTSA has no laws or regulations affecting your client as a retail business selling motorcycle frames. Regulation of retail businesses is generally a matter of state law. For more specific information, I would suggest you investigate the requirements for each state in which your client intends to begin a retail establishment.

For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

ID: nht81-2.37

DATE: 06/19/81

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Tokai Rubber Industries, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter regarding several new kinds of plastic vacuum brake hoses that you plan to manufacture. The plastic brake hoses are flexible nylon tubes for use in a vacuum braking system. You indicate that these hoses cannot comply with several provisions of Safety Standard No. 106, and ask whether the plastic hoses could qualify as "vacuum tubing connectors."

Safety Standard No. 106 (49 CFR 571.106) specifies performance and labeling requirements for brake hose, which is defined in the standard as:

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

Since the nylon tubes which you plan to manufacture will transmit the vacuum used to apply force to a vehicle's brakes, the tubes would qualify as "brake hose" under this definition and would be subject to all requirements of Safety Standard No. 106. Moreover, it appears that the nylon tubes would not qualify as "vacuum tubing connectors," which are excepted from compliance with the standard in the definition of brake hose. Section 4 of Safety Standard No. 106 defines "vacuum tubing connector" as:

"a flexible conduit of vacuum that (i) connects metal tubing to metal tubing in a brake system, (ii) is attached without end fittings, and (iii) when installed, has an unsupported length less than the total length of those portions that cover the metal tubing."

According to the illustrated drawings included in your letter, the nylon flexible tubes with which you are concerned would have an unsupported length which is greater than the total length of those portions that cover metal tubing. Therefore, the nylon tubes would not qualify as "vacuum tubing connectors" under subsection (iii) of the above definition. The purpose of the definition is to except from compliance with the standard only those vacuum connectors that have unsupported lengths short enough that they will not sag or deflect because of their own weight. While your nylon tubes may be sturdy enough to meet this intended purpose, as the definition is currently written, the tubes cannot be considered vacuum tubing connectors.

If, as your letter indicates, the nylon brake hose does not comply with all requirements of Safety Standard No. 106, you would not be permitted to sell it in the United States. You may wish to petition the agency to amend Standard No. 106 to establish separate performance requirements specifically designed for nylon vacuum tubing such as that produced by Tokai. I am enclosing a copy of the procedures which explain how you can file a petition, in case you are interested.

Sincerely,

ID: 86-5.34

TYPE: INTERPRETATION-NHTSA

DATE: 10/24/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. H. Tsujishita

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of July 15, 1986, asking three interpretation questions concerning Federal Motor Vehicle Safety Standards Nos. 101, Controls and Displays, and 108, Lamps, Reflective Devices, and Associated Equipment. The answers to your questions are provided below.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment comply with applicable standards. The following represents our opinion based on the information provided in your letter.

Your first question concerns the visibility requirements for the upper beam telltale (indicator). As noted by your letter, section S5.3.3 of Standard No. 101 provides that the light intensity of each telltale shall be such that, when activated, that telltale and its identification are visible to the driver under all daytime and nighttime conditions. The upper beam telltale is one of the telltales subject to that requirement. You note, however, that section S4.5.2 of Standard No. 108 requires a high beam indicator that conforms to SAE Recommended Practice J564a (except that the signal color need not be red). J564a provides that the upper beam indicator should be "plainly visible to drivers of all heights under normal driving conditions when headlights are required." Based on this provision, you suggest that the upper beam telltale is not required to be visible to the driver under the daytime conditions when headlamps are not needed. As discussed below, your understanding is incorrect.

The difference between these two requirements is not so great as you suggest. The reference to "normal driving conditions" in J564a includes a variety of non-nighttime conditions (e.g., driving at dusk or dawn, and driving in daytime rainstorms) when headlamp use may be required by the States. To the extent that Standard No. 101 requires the telltale to be visible under daylight driving conditions not covered by Standard No. 108, manufacturers must meet the broader requirement. Manufacturers are required to meet all applicable safety standards. We note that while Standards Nos. 101 and 108 each cover upper beam telltales and specify different requirements, it is possible to meet the requirements of both standards simultaneously.

You stated that under daylight conditions the upper beam cannot dazzle oncoming drivers and that there is therefore no need to inform the driver that the upper beam is on. While there may be less need for this telltale during daylight than at night, Standard No. 101 reflects our belief that there is still a need and requires that the telltale be visible under all daytime and nighttime conditions (if the upper beams are actually on).

Your second question concerns the upper beam telltale minimum area requirement. SAE Recommended Practice J564a, which, as noted above, is referenced by section S4.5.2 of Standard No. 108, provides that the upper beam indicator should consist of a "light, with a minimum area equivalent to that of a 3/16 in. diameter circle." You asked how this requirement would apply to two designs.

In the first design, the outline of the telltale symbol would lighten while the area within and around the telltale symbol would not. You suggested that the framed area, i.e., the area within the telltale that is framed by the outline but not lighted itself, can be counted into the minimum area requirement. As discussed below, that is incorrect. In the second design, the telltale symbol would be superimposed on a rectangle. In this case, the entire area within the rectangle would lighten, except for that covered by the symbol itself. You suggested that the lighted area other than that covered by the symbol can be counted toward the minimum area requirement. As discussed below, that is correct.

In referencing SAE Recommended Practice J564a, Standard No. 108 requires that the upper beam indicator must consist of a light, and also specifies the minimum area for that light. It does not specify the shape of the light. If the light is a simple circle which is lighted in its entirety (with the identification required by Standard No. 101 placed adjacent to the circle), that lighted circle must be at least 3/16 inch in diameter. If the light is some other shape, such as the shape of the upper beam symbol or a rectangle in which only part of the area is lighted, the total area which is lighted must be at least as large as the area of a 3/16 inch circle. Thus, in the case of the first design discussed above, only the outline area (i.e., the blue lighted area) of the upper beam symbol can be counted toward the minimum area requirement. The unlighted interior part (i.e., the black area) of the symbol cannot be counted toward the minimum area requirement. In the case of the second design discussed above, the entire (blue) area within the rectangle that lightens can be counted toward the minimum area requirement. However, that part of the rectangle which does not lighten, i.e., the (white) part covered by the symbol, cannot be counted.

Your third question concerns Standard No. 101's illumination requirements for a side marker lamp control that is incorporated into the master lighting switch. As suggested by your letter and as discussed below, illumination is not required if the identifying symbol for the side marker lamps is marked on the master lighting switch.

While Table 1 of Standard No. 101 requires that side marker lamp controls be identified with the side marker lamp control symbol and that such identification be illuminated, it also provides that separate identification is not required if controlled by the master lighting switch. Thus, for side marker lamp controls that are incorporated into the master lighting switch, use of the side maker lamp control symbol is voluntary. Since such identification is not required by Standard No. 101, it is our opinion that the standard does not require manufacturers to illuminate such identification if they choose to provide it voluntarily.

SINCERELY,

AGENDA 4-b DAIHATSU MOTOR CO., LTD.

Erika Z. Jones Chief Counsel Office of the Chief Counsel National Highway Traffic Safety Administration

Dear Ms. Jones:

Additionally to the questions which we sent by letter date Feb. 18, 1986, would you please kindly answer the questions with regard to the interpretation of FMVSS Nos. 101 and 108 as described on the following pages?

H. Tsujishita Chief Co-ordinator of Technical Administration Dept. Head Office

ENC.

1. FMVSS Nos. 108 & 101; Highbeam Indicator Visibility requirement

Paragraph S5.3.3 of FMVSS No. 101 provides that each tell-tale and its identification shall be visible to the driver under all daytime and night time conditions. According to this provision, highbeam tell-tale shall be visible even under daytime condition.

On the other hand, paragraph S4.5.2. of FMVSS No. 108 requires a highbeam indicator which conforms to SAE J564a on each vehicle, and SAE J564a provides that the highbeam indicator shall be plainly visible to the driver under normal driving conditions when head lights are required. That means, under daytime conditions whenhead lights are not required, the highbeam indicator is not needed to be plainly visible.

We believe that the purpose of the highbeam indicator is essentially to indicate the driver that the upper beam of the head lamps are on to prevent the opposite driver from being dazzled by passing each other with the upper beam on. Under the daytime condition, as the upper beam can not dazzle the opposite driver any longer, and there is no need to indicate the driver trat the upper beam is on.

Therefore we believe that the high beam indicator (tell-tale) is not required to be visible to the driver under the daytime conditions when head lights are not needed.

Is our understanding right?

2. FMVSS No. 108; Highbeam Indicator Minimum Area Requirement

As stated above, S4.5.2 of FMVSS No. 108 requires a highbeam indicator which conforms to SAE J564a on each vehicle, and SAE J564a provides that the highbeam indicator shall have a minimum area equivalent to that of a 3/16 in. diameter circle.

A. In case that only the frame of the tell-tale will be lighten

We believe the framed area can be counted into the minimum area requirement.

B. In case that the background of the tell-tale will be lighten

We believe the entire shaded area can be counted into the minimum area requirement.

If our understanding is wrong, please explain in the above requirement in detail.

(Graphics omitted)

3. FMVSS No. 101; Side Marker Lamp Control Illumination

Table 1 of FMVSS No. 101 requires that the identification of side marker lamp control shall be illuminated when the head lamps are on, and it also provides in its footnote that separate identification (for the side marker lamp control) are not required if the side marker lamp are controlled by the master lighting switch. In case that the side marker lamps are are controlled by the master lighting switch and the identifing symbol for the side marker lamps is marked on the switch voluntarily by the manufacturer, we believe that the illumination for the side marker lamp control is not required, because the side marker lamp control which is combined into the master lighting switch is easily identifiable.

Is our understanding right?

ID: 1984-1.24

TYPE: INTERPRETATION-NHTSA

DATE: 03/15/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: COSCO -- Don Gerken, Research and Development

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Don Gerken Senior Product Engineer Research and Development COSCO 2525 State Street Columbus, Indiana 47201

This responds to your letter asking for an interpretation of Safety Standard No. 213, Child Restraint Systems (49 CFR S 571.213). Specifically you noted that your company would like to begin producing a child restraint system with a new shield design. The new shield would be substantially smaller than the shield your company currently uses. You noted that this type of shield is already being sold by other companies, and that in your restraint, the harness system, but not the shelf-like shield, would restrain the child's forward movement. A system with that characteristic would not comply with Standard No. 213.

Section S5.2.2.2 of Standard No. 213 specifies that no fixed or movable surface shall be in front of the child, except surfaces which restrain the child. Since your proposed new shield does not restrain the child, it is expressly prohibited from being mounted on the child restraint.

Even assuming that the proposed new shield did act to restrain the child, there is still a question of whether the shield would comply with section S5.2.2.1(c), since your drawing does not indicate which portions of the shield would restrain a child's torso and thus would need to comply with the 2-inch radius of curvature requirement.

At this time, the Enforcement Division of this agency has several investigations pending concerning potential violations of the standard by firms using shields along the lines of the shield you propose. These investigations focus primarily on whether such shields satisfy the 2-inch radius of curvature requirement of section S5.2.2.1(c) of Standard No. 213.

Please do not hesitate to contact me if you need further information or have further questions on this matter.

Sincerely,

Frank Berndt Chief Counsel

Mr. Frank Berndt Chief Counsel U. S. Department of Transportation National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, DC 20590

September 27, 1983

Dear Mr. Berndt:

My present project is to reduce cost of our Child Restraints and, at the same time, comply with the Standards.

We make a shield, illustrated as Design "A" attached, that is costly and we cannot produce it in-house. The shape illustrated as Design "B" lends itself to injection molding that we could do in-house. If this shape were used in such a way that it was spring loaded upward and moving it down in front of a child would also place a harness system on the child, would this design violate the Standards, assuming it met all the test criteria?

In effect, the harness system would restrain the child's forward movement -- not the shelf-like shield.

This is not something new. The concept now is being sold; but before pursuing this concept further ourselves, we would like assurance that the concept will comply.

Your immediate attention to this matter will be greatly appreciated.

Sincerely,

Don Gerken

Senior Product Engineer Research and Development

rm

Encl.

INSERT GRAPH

ID: 8240a

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

Dear Mr. Dittert:

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

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

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

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

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

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

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

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

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

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

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

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

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

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

Whenever a Federal motor vehicle safety standard ... is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.

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

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

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

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

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

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

Sincerely,

John Womack Acting Chief Counsel

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

ID: nht93-3.34

DATE: May 5, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Bob Dittert -- Trooper, Texas Department of Public Safety

TITLE: None

ATTACHMT: Attached to letter dated 1-14-93 from Bob Dittert to NHTSA (OCC 8240)

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

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

Under S108(a)(1)(A) of the Safety Act, no person shall manufacture or sell a new motor vehicle or new item of motor vehicle equipment that does not meet all applicable FMVSS's. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces.

The prohibition in S108(a)(1)(A) against selling complying vehicles and items of equipment does not apply to a vehicle or item of equipment after its first sale to a consumer. However, S108(a)(2)(A) of the Act applies to modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

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

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

your letter.

QUESTION ONE:

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

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

QUESTION TWO:

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

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

QUESTION THREE:

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

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

Your question relates to S103(d) of the Safety Act, which states:

Whenever a Federal motor vehicle safety standard ...

is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.

Whether State law is preempted under S103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the MANUFACTURE of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to ALLOW THE MANUFACTURE OR SALE of glazing materials or new vehicles containing glazing material that did not meet the specifications of

Standard 205.

As stated above, Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses (SlO8(a)(2)(A) of the Safety Act). The effect of S108(a)(2)(A) is to impose limits on the tinting practices of businesses listed in S108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to ALLOW MODIFICATIONS VIOLATING STANDARD 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

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

QUESTION 4:

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

You are correct that S108(a)(2)(A) of the Safety Act regulates the modifications of only the commercial entities listed in that section of the Act, and that the Safety Act does not prohibit an individual from modifying his or her vehicle such that it no longer complies with the FMVSS's. The States may have requirements governing the modification of a vehicle by individual owners.

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

ID: nht94-7.1

DATE: April 7, 1994

FROM: John A. Boehner -- Congress of the United States, House of Representatives

TO: Jackie Lowey -- Director, Congressional Affairs, DOT

TITLE: None

ATTACHMT: Attached to letter dated 6/25/94 Est from John Womack to John A. Boehner (A42; Std. 108; VSA S102(a)(2)(A)) and letter dated 3/25/94 from James Ackley, Carol Baumhauer and Krista D. Subler to John A. Boehner

TEXT:

The enclosed correspondence requesting permission to use two unassigned colors was sent to me by Mr. John Cail and Mr. James Ackley.

I would greatly appreciate you providing my Hamilton office with the appropriate information so that I may reply to my constituent's inquiry.

If I may provide additional information, please do not hesitate to contact me.

Attachment

C & L Safety Products Unlimited Eaton, Ohio

The Honorable John A. Boehner (R-Ohio) 1020 Longworth House Building Washington, D.C. 20510

Dear Mr. Boehner,

We are writing to request the assistance of your office, or your personal assistance, in obtaining Department of Transportation approval and color code designation on our, LIFE LITES system. Our firm has secured a patent, foreign trade license and completed testing with the Ohio State University, and is ready to begin producing the device.

C & L Safety Products currently has a plastics firm and lighting manufacturer within your district to begin production, as well as, several organizations who have committed to purchase the final product. We feel normal, or abnormal delays, in securing approval for the device could adversely impact the economic development of your voting area. Rapid approval would permit you to utilize our firm as an example, particularly in an election environment, of the assistance you can provide to those considering southwest Ohio as a site for future business. Additionally, we are prepared to utilize our public relations firm in contacting other organizations with the details of any assistance provided by you in this matter.

Sue Clark, of your Hamilton office, has been working with us, and has all the details of efforts made to date in securing approval, and has been greatly supportive in moving through the Department of Transportation process.

We have taken the liberty of enclosing a local and national press article explaining the purpose of the device, as well as, copies of the patent and foreign trade permit. Should there be any questions, please call us, to reduce the delays associated with mailed correspondence. Best wishes for continued success.

Sincerely,

John Cail Sr. James Lipps

3/29/94

ID: 06-006577drn

ID: 21713.ztv

Keith G. Dameron, Captain
Motor Carrier Safety Section
Colorado State Patrol
700 Kipling Street, Suite 1000
Denver, CO 80215-5865





Dear Captain Dameron:

This responds to your letter dated May 17, 2000, in which you request an interpretation whether Samsung and Daewoo "fixed-load/off-road" trucks are classified as "motor vehicles." This letter confirms that the National Highway Traffic Safety Administration (NHTSA) does not consider the trucks you describe, commonly called mobile construction cranes, to be "motor vehicles."

As you may be aware, a motor vehicle under our principal vehicle safety statute is defined as a vehicle that has been "manufactured primarily for use on public streets, roads, and highways." (49 U.S.C. 30102(a)(6)). Further, if a vehicle is a "motor vehicle," it must comply with all applicable Federal motor vehicle safety standards in order to be imported into the United States (49 U.S.C. 30112(a)). The question is whether the Samsung and Daewoo trucks are "motor vehicles."

This issue was the subject of Koehring Co. v. Adams, 452 F. Supp. 635 (E.D. Wisc. 1978). The plaintiffs were seven manufacturers who sought a declaratory judgment that the mobile cranes, mobile excavators, and mobile drill wells which they manufactured were not "motor vehicles" subject to 15 U.S.C. 1381 et seq., the National Traffic and Motor Vehicle Safety Act (recodified as 49 U.S.C. Chapter 301 in 1994). The manufacturers had admitted that their vehicles used the public roads, and the parties stipulated that the typical item of the construction equipment at issue traveled an estimated average of 2,100 to 2,200 miles per year under its own power on the public roads, and spent a majority of its operation time off the public roads.

The court granted the plaintiffs' motion for summary judgment, and declared "that mobile construction equipment which is designed to perform work on a construction site and which normally uses the public streets, roads or ways only for travel between job sites, is not a vehicle which has been manufactured primarily for use on public streets, roads and highways" (op. cit. at 638). Although conceding that the equipment possessed design features required for on-road travel such as rubber tires, the capability of traveling at highway speeds and conforming to government regulations for vehicle width, the court stated that the record before it was clear that operation on the public roads was "decidedly" an incidental activity and that "the greater percentage of these vehicles' operation is on off-highway construction sites rather than on public roads." On a limited interpretation of the term "primarily" in the definition of " motor vehicle," the court held that the mobile cranes, excavators and drill wells at issue were not "motor vehicles." The 7^th Circuit affirmed the district court's decision. Although we did not agree with the courts, we have not undertaken to reconsider Koehring in our interpretations involving construction equipment.

We continue to be concerned with the Koehing decision, particularly because we have received information indicating that mobile construction cranes manufactured by Samsung and others are using the public roads far more frequently than they appear to have done at the time of the Koehring decision. We are not bound by Koehring because it was not based on an analysis consistent with Chevron U.S.A., Inc. v. Natural Resources Defense Committee, Inc., 467 U.S. 837 (1984). However, the importers of the Samsung and Daewoo mobile construction cranes may have imported their vehicles pursuant to Koehring's classification of mobile cranes as "mobile construction equipment," in accordance with that court decision. Since our interpretations are in accord with that decision and we have not undertaken to distinguish it, we do not view the importation and use of the Samsung and Daewoo vehicles you describe as a violation of 49 U.S.C. 30112(a).





Sincerely,
John Womack
Acting Chief Counsel

ref:571
d.3/21/01

ID: 3267o

Lance E. Tunick, Esq.
Vice President and General Counsel
Maserati Automobiles, Inc.
1501 Caton Avenue
Baltimore, MD 21227

Dear Mr. Tunick:

This responds to your October 20, 1988 letter, in which you asked for an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR 571.208). More specifically, you noted that section S4.1.3 requires a specified percentage of a manufacturer's annual production to be equipped with automatic occupant protection. You stated that some vehicles imported into the United States may subsequently be exported to Canada. Since section 108(b)(5) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(b)(5); the Safety Act) specifies that none of the safety standards apply to vehicles intended solely for export, your company assumes that it should not include vehicles subsequently exported to Canada in its annual production totals when determining compliance with S4.1.3 of Standard No. 208. This assumption is incorrect, as explained below.

In a September 4, 1985 letter to Messrs. Stephen Waimey and Dean Hansell (copy enclosed), we answered the question of how manufacturers that produce cars outside the United States should calculate their annual production to determine compliance with the phase-in requirements of Standard No. 208. That letter explains that foreign-based manufacturers should count the number of vehicles that were produced and certified for sale in the United States, in accordance with 49 CFR Part 567, Certification, during the relevant time period to determine their annual production for the purposes of Standard No. 208.

Your letter referred to section 108(b)(5) of the Safety Act, and suggested that this statutory provision means that any vehicles that are imported into the United States and subsequently exported to a different country should not be counted as part of the manufacturer's annual production. I am happy to explain our view of what is permitted under that statutory provision.

Section 108(b)(5) provides that the requirements in the safety standards "shall not apply in the case of a motor vehicle or item of motor vehicle equipment intended solely for export, and so labeled or tagged on the vehicle or item itself and on the outside of the container, if any, which is exported." This statutory language establishes three separate conditions that would have to be satisfied to exclude a vehicle from the requirements of the safety standards, including the calculation of a manufacturer's annual production for purposes of Standard No. 208. These three conditions are:

1. The vehicle must be intended solely for export; 2. The vehicle must have a label or tag on it at the time it is imported which shows that the vehicle is intended solely for export; and 3. The vehicle must actually be exported.

We agree with your contention that a vehicle satisfying all three of these conditions would not be subject to the requirements of any of the safety standards, and could properly be excluded from the calculation of a manufacturer's annual production for the purposes of Standard No. 208. For a similar interpretation regarding imported tires that are intended solely for export and so labeled, see the enclosed November 10, 1975 letter to Mr. John B. White. Of course, it would not be sufficient if only one of these conditions, such as the third one regarding actual exportation, were satisfied.

We are uncertain regarding the facts surrounding the vehicles that have already been imported into the United States and then exported to Canada and thus are unable to give an opinion concerning their satisfaction of the section 108(b)(5) conditions. It should be relatively simple for you to determine whether these vehicles satisfied the first two conditions. Did those vehicles truly just pass through the US on their way to Canada? To what country's standards were those vehicles certified and when? When the vehicles were imported into the United States, your company was required to complete a Form HS-7. That form allows the importer to declare that a vehicle is intended solely for export and that the vehicle bears a label or tag to that effect. What type of declaration was made with respect to the vehicles in question?

As to vehicles which Maserati Automobiles, Inc., wishes in the future to import into this country and pass directly through to Canada for sale there, satisfaction of each of the three section 108(b)(5) conditions will assure that the vehicles are not included in the Standard No. 208 calculations. If you have any further questions or need additional information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:208#VSA#MIS d:l2/9/88