ID: 0191

Herr P. Binder
ITT Automotive Europe GmbH
Bietigheim-Bissingen
Germany

FAX 07142/73-2895

Dear Herr Binder:

This responds to your FAX of July 19, 1994, requesting a reinterpretation of our letter to you of June 21, 1994. You had intended to ask us about taillamps rather than the turn signal lamps which were the subject of our letter.

Your latest letter shows a rear motor vehicle lighting array of four lamps, two on the body and two on the tailgate. The lamps on the body contain turn signals, stop lamps, and taillamps. The lamps mounted on the tailgate contain backup lamps, rear fog lamps, and taillamps. Your letter asks for confirmation of your interpretation that:

"This lighting system is a multiple lamp arrangement, therefore the combination of taillamp 1 and taillamp 2 has to be used to meet the photometric requirements for 2 lighted sections (SAE J585e, 3.1 and Table 1)."

This is correct. Paragraph 3.1 of SAE J585e states that "multiple lamps may be used to meet the photometric requirements of a tail lamp." Note 3 of Table 1 states that "separately lighted sections . . . may be separate lamps", and that the photometric values are to apply when all sections that provide the tail signal are considered as a unit.

"Visibility will be judged with tailgate closed."

As we advised you in our earlier letter, this is also correct. "Only taillamp 2 mounted on the tailgate will meet the requirements for an unobstructed projected illuminated area of 12.5 cm2 measured at 45 deg. inboard. This is in accordance with SAE J 585e; Par. 4."

Taillamp 1 and taillamp 2 together comprise the taillamp system. Thus it is not required that taillamp 1 meet the inboard visibility requirements when they are met by taillamp 2.

You have also asked some general questions:

"Are there regulations which lamps has to be mounted on the body and which lamps are allowed on the tailgate?"

No. Table IV's requirement for the location of rear stop, tail, and turn signal lamps is that they be "as far apart as practicable." However, Standard No. 108 does not specify which lamps must be mounted on the body and which are permissible on the tailgate. We encourage manufacturers to mount signal lamps on the body, such as is shown in your drawing.

"Is there a regulation to take an approval test in an authorized test laboratory (e.g. ETL)?"

No. NHTSA has no authority to require a manufacturer to take approval tests or to designate test laboratories of which it approves.

"Which US-Authority has to be informed about this test?"

A manufacturer is not required to inform NHTSA or any other governmental agency about its tests. However, NHTSA has the authority to ask a manufacturer to provide it with copies of test results, and generally does so if it finds failures to meet Standard No. 108 in its own tests.

"How long is this test valid?" "After which period has this test to be repeated?"

Under our laws, a lamp manufacturer is required to certify compliance of replacement equipment with Standard No. 108, and it is the manufacturer's determination when it should retest a lamp to verify that its certification of compliance remains correct. In our experience, manufacturers will retest when there are design changes to its products. Manufacturers also

engage in surveillance testing of products after they have entered production to ensure that design tolerances continue to be met and that the lamp remains in compliance with the specifications of Standard No. 108.

Sincerely,

John Womack Acting Chief Counsel

ref:108 d:8/2/94

ID: 2858yy

Mr. J. C. Brown
President
MidAmerica Design Service
10206 Lima Road
Ft. Wayne, IN 46618

Dear Mr. Brown:

This is in reply to your letter of February 8, l99l, to the attention of Taylor Vinson of this Office. Your company has been asked to "develop a high mounted stop light and turn signal to be installed into the door of over the road trailers." You have not found a reference in Standard No. l08 to such a lamp, and you have concluded that, as long as you add to the trailer's existing lamps without eliminating any of its lighting devices that are standard equipment, you will be in compliance. You have asked us for our opinion on this matter.

You are correct that the requirement for a center high mounted stop lamp does not extend to trailers. Moreover, trailers are not included in the agency's pending rulemaking to extend the requirements to vehicles other than passenger cars. Although your design appears to combine the stop lamp and turn signal, a combination prohibited for passenger cars, you are under no Federal legal obligation to design a center high mounted stop lamp for trailers that complies with Standard No. l08.

As the lamp is not intended to replace original equipment required by Standard No. l08, it is permissible under section S5.1.3 of the standard as long as it does not impair the effectiveness of the lighting equipment that the standard requires. The judgment of whether impairment exists is initially that of the trailer manufacturer, who certifies compliance with all applicable Federal motor vehicle safety standards. If that decision appears clearly erroneous, NHTSA will review it and inform the manufacturer accordingly.

Assuming that the trailers for which the lamp is intended have an overall width of 80 inches or more, your lamp would be mounted in closest proximity to the three-unit identification lamp cluster, which Table II of Standard No. 108 requires to be located "as close as practicable to the top of the vehicle." Identification lamps indicate to following drivers the presence of a large vehicle in the roadway ahead. It is possible that an activated center stop lamp or adjacent turn signal could mask the light from these lamps. However, these trailers are also equipped with clearance lamps, which serve the same purpose of identifying a large vehicle. Thus, it would appear that your device would not impair the effectiveness of the identification lamps within the prohibition of section S5.1.3.

We assume that the turn signal portion of the lamp is a supplement to others on the trailer that are located to comply with the 83-inch maximum mounting height imposed by Table II.

I hope that this is responsive to your concern.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:3/7/9l

ID: 3259o

Mr. Donald N. Stahl
District Attorney
Office of District Attorney
Bureau of Investigation
Court House
P.O. Box 442
Modesto, CA 95353

Dear Mr. Stahl:

Re: McCoy Tire Service Center D.A. No. CF696

This responds to your letter asking about requirements concerning the importation of tire casings. According to your letter, a routine inspection by the California Highway Patrol (CHP) of a local school district's buses disclosed recapped tires on a bus which did not have DOT markings on the tires. The CHP learned that the tire casings were originally designed for use by a rubber tire train in Japan and were new tires that had been imported for recapping purposes. The tire casings were imported as slicks (no tread design), and the slick was removed. The tires were then recapped using the "bondag" process and sold to the school district. You asked whether it is permissible to import this type of tire casing and, if so, whether the particular type of tire casing meets Department of Transportation standards. Your questions are responded to below. Our opinions are based on the facts provided in your letter.

Before addressing your specific questions, I will provide background information about requirements for tires. All tires which are subject to a Federal motor vehicle safety standard must have the symbol "DOT" molded into the sidewall by the manufacturer or retreader, if those tires are to be imported into the United States. This symbol represents a certification by the manufacturer or retreader that the tire complies with all requirements of the applicable safety standards.

New tires for use on school buses are subject to Federal Motor Vehicle Safety Standard No. ll9 (49 CFR 571.119). Section S6.5(a) of the standard requires that all new tires for use on motor vehicles other than passenger cars have the DOT symbol molded into the sidewall by the manufacturer. Tires without this symbol may not be legally imported. This is also true for used tires manufactured on or after the effective date of Standard No. ll9, March l, l975, with one narrow exception.

Used tires for use on motor vehicles other than passenger cars which have less than 2/32 inch of tread remaining and which are imported solely for the purpose of being retreaded in this country prior to resale may be imported without a DOT symbol on the sidewall. I have enclosed a copy of a June l8, l98l letter to Mr. Roy Littlefield, which explains in detail the requirements of this narrow exception to the requirements that used tires have a DOT symbol on the sidewall to be legally imported.

No Federal safety standard is applicable to retreaded tires for use on motor vehicles other than passenger cars. They may be imported without certification of compliance by the retreader. However, these tires must have a tire identification number marked on the sidewall, per the requirements of 49 CFR Part 574.

Your first question is whether it is permissible to import the type of tire casing at issue. As indicated above, new tires for use on school buses may not be imported without the DOT symbol. However, it is our opinion that the casings at issue are materials needing further manufacturing operations to become completed items of motor vehicle equipment, rather than finished items of motor vehicle equipment (tires which could lawfully be used or sold as they are). This opinion is based on the fact that the casings are being imported as slicks, which generally cannot be used on the public highways under state laws since they have no tread, and since the casings are being imported for purposes of recapping.

Your second question is whether the casings at issue meet Department of Transportation standards. A key issue in answering this question is whether the tires are considered to be retreaded tires or new tires subject to Standard No. ll9. It is our opinion that any tires manufactured by applying new tread to new casings are considered new tires rather than retreaded tires, and are subject to the same requirements as any other new tires.

The National Highway Traffic Safety Administration defines "retreaded" as "manufactured by a process in which a tread is attached to a casing." The term "casing" is defined as "a used tire to which additional tread may be attached for the purpose of retreading." See 49 CFR Part 57l.ll7 and 49 CFR Part 574.3(b).

In the situation you described in your letter, the casings were not used tires at the time the "recapping" took place. Instead, they were simply new tires (originally designed for use on a rubber tire train) which were imported for recapping purposes. These casings would not be considered used tires until they have actually been used (presumably on a train prior to importation, or on the highway, with the new tread attached, in the United States.)

Since the tires at issue were not used tires at the time they were recapped, they are not retreaded tires but are instead new tires, subject to Standard No. ll9. The tires would appear not to comply with Standard No. ll9, given the absence of the DOT symbol. Your letter states that the original manufacturer of the tires has stated that the tires are not suitable by any means for highway use. If the tires are not suitable for highway use after they have been recapped, they may contain a safety-related defect. See l5 U.S.C. l4ll et seq. We note that the defect provisions of the National Traffic and Motor Vehicle Safety Act apply to items of motor vehicle equipment regardless of whether there is an applicable safety standard.

We hope this information is helpful, and we are referring your letter to our Office of Enforcement.

Sincerely,

Erika Z. Jones Chief Counsel

ref:VSA#574#119 d:l2/9/88

ID: 3312o

Mr. Donald N. Stahl
District Attorney
Office of District Attorney
Bureau of Investigation
Court House
P.O. Box 442
Modesto, CA 95353

Dear Mr. Stahl:

Re: McCoy Tire Service Center D.A. No. CF696

This responds to your letter asking about requirements concerning the importation of tire casings. According to your letter, a routine inspection by the California Highway Patrol (CHP) of a local school district's buses disclosed recapped tires on a bus which did not have DOT markings on the tires. The CHP learned that the tire casings were originally designed for use by a rubber tire train in Japan and were new tires that had been imported for recapping purposes. The tire casings were imported as slicks (no tread design), and the slick was removed. The tires were then recapped using the "bondag" process and sold to the school district. You asked whether it is permissible to import this type of tire casing and, if so, whether the particular type of tire casing meets Department of Transportation standards. Your questions are responded to below. Our opinions are based on the facts provided in your letter.

Before addressing your specific questions, I will provide background information about requirements for tires. All tires which are subject to a Federal motor vehicle safety standard must have the symbol "DOT" molded into the sidewall by the manufacturer or retreader, if those tires are to be imported into the United States. This symbol represents a certification by the manufacturer or retreader that the tire complies with all requirements of the applicable safety standards.

New tires for use on school buses are subject to Federal Motor Vehicle Safety Standard No. ll9 (49 CFR 571.119). Section S6.5(a) of the standard requires that all new tires for use on motor vehicles other than passenger cars have the DOT symbol molded into the sidewall by the manufacturer. Tires without this symbol may not be legally imported. This is also true for used tires manufactured on or after the effective date of Standard No. ll9, March l, l975, with one narrow exception.

Used tires for use on motor vehicles other than passenger cars which have less than 2/32 inch of tread remaining and which are imported solely for the purpose of being retreaded in this country prior to resale may be imported without a DOT symbol on the sidewall. I have enclosed a copy of a June l8, l98l letter to Mr. Roy Littlefield, which explains in detail the requirements of this narrow exception to the requirements that used tires have a DOT symbol on the sidewall to be legally imported.

No Federal safety standard is applicable to retreaded tires for use on motor vehicles other than passenger cars. They may be imported without certification of compliance by the retreader. However, these tires must have a tire identification number marked on the sidewall, per the requirements of 49 CFR Part 574.

Your first question is whether it is permissible to import the type of tire casing at issue. As indicated above, new tires for use on school buses may not be imported without the DOT symbol. However, it is our opinion that the casings at issue are materials needing further manufacturing operations to become completed items of motor vehicle equipment, rather than finished items of motor vehicle equipment (tires which could lawfully be used or sold as they are). This opinion is based on the fact that the casings are being imported as slicks, which generally cannot be used on the public highways under state laws since they have no tread, and since the casings are being imported for purposes of recapping.

Your second question is whether the casings at issue meet Department of Transportation standards. A key issue in answering this question is whether the tires are considered to be retreaded tires or new tires subject to Standard No. ll9. It is our opinion that any tires manufactured by applying new tread to new casings are considered new tires rather than retreaded tires, and are subject to the same requirements as any other new tires.

The National Highway Traffic Safety Administration defines "retreaded" as "manufactured by a process in which a tread is attached to a casing." The term "casing" is defined as "a used tire to which additional tread may be attached for the purpose of retreading." See 49 CFR Part 57l.ll7 and 49 CFR Part 574.3(b).

In the situation you described in your letter, the casings were not used tires at the time the "recapping" took place. Instead, they were simply new tires (originally designed for use on a rubber tire train) which were imported for recapping purposes. These casings would not be considered used tires until they have actually been used (presumably on a train prior to importation, or on the highway, with the new tread attached, in the United States.)

Since the tires at issue were not used tires at the time they were recapped, they are not retreaded tires but are instead new tires, subject to Standard No. ll9. The tires would appear not to comply with Standard No. ll9, given the absence of the DOT symbol. Your letter states that the original manufacturer of the tires has stated that the tires are not suitable by any means for highway use. If the tires are not suitable for highway use after they have been recapped, they may contain a safety-related defect. See l5 U.S.C. l4ll et seq. We note that the defect provisions of the National Traffic and Motor Vehicle Safety Act apply to items of motor vehicle equipment regardless of whether there is an applicable safety standard.

We hope this information is helpful, and we are referring your letter to our Office of Enforcement.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:VSA#574#119 d:12/9/88

ID: 1982-1.10

TYPE: INTERPRETATION-NHTSA

DATE: 02/09/82

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Halloran, Sage, Phelon & Hagarty

TITLE: FMVSS INTERPRETATION

TEXT:

U.S. DEPARTMENT OF TRANSPORTATION NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION Washington, D.C. 20590

February 9, 1982

Mr. Thomas J. Hagarty Halloran, Sage, Phelon & Hagerty One Financial Plaza Hartford, CT 06103

Dear Mr. Hagarty:

This responds to your recent letter asking whether Safety Standard No. 301, Fuel System Integrity, includes specifications for fixed barrier rear-end crash test.

The answer to your question is no. Standard No. 301 specifies a rear-end crash test, but the test involves a moving barrier, not a fixed barrier. On August 29, 1970, the agency did propose a fixed barrier rear-end crash test for Standard No. 301 (35 FR 13799). However, that proposal was never made final. Rather, on August 20, 1973, the agency issued another proposal which specified a moving barrier for the rear-end crash test (38 FR 22417). This proposal was finalized and is the rule which is in existence today. I am enclosing copies of these Federal Register notices for your information, as well as a copy of Standard No. 301.

I hope this has answered all your questions.

Sincerely,

Frank Berndt Chief Counsel

Enclosures HALLORAN, SAGE, PHELON & HAGARTY ATTORNEYS AT LAW

November 24, 1981

Hugh Oates, Esquire National Highway Traffic Safety Administration Department of Transportation 400 Seventh Street, S.W. Washington, D.C. 20024

Re: Our File No. 1410-10-008

Dear Mr. Oates:

Andrew R. Hricko, General Counsel and Secretary of the Institute for Highway Safety suggested that you might be able to answer some questions for me or refer the questions to someone who can.

I am involved in a lawsuit involving an automobile fire following a rear-end collision and overturn. I recently took the deposition of an expert for the other side who testified in substance that there is a fixed barrier rear-end crash standard and that NHTSA has been doing fixed barrier rear-end crash tests. The enclosed photocopy of a portion of a transcript of this expert's deposition further details this.

If there is a fixed barrier rear-end fuel system integrity standard I have been unable to find it. I am familiar with Standard 301 - I think. It is my understanding that this Standard mandated a frontal crash into a fixed barrier in the late 1960's and that in the mid-70's a moving barrier rear crash requirement was added. So far as I have been able to learn neither it nor any other Standard described a fixed barrier rear-end crash test for fuel system integrity (or, so far as I know, any other characteristics). I would appreciate it very much if you would tell me whether I am missing something. Is there any Standard involving a fixed barrier rear-end crash test?

Has the Bureau of Crashworthiness (if that is the correct designation) or any other governmental agency been engaged in a program involving fixed barrier rear-end crash testing? If there is or has been such a program how can I obtain complete detailed information concerning it?

I appreciate your assistance.

Sincerely,

Thomas J. Hagarty

TJH/hma

Q And about how many times have you testified in court on a similar project?

A Twenty times.

Q Now, you concluded that the pre-impact speed of the Datsun was what?

A. The speed at impact of the Datsun was 26.46 miles an hour.

Q. And the speed of the Firebird, the Ellsworth Firebird, just at the instant of impact was what?

A. 86 -- wait a minute. It was 86.26.

Q. And that resulted in a post-impact speed of the Datsun of what?

A. 57.7.

Q. So, the difference between 57.7 and 26.4 is what?

A. The change in speed.

Q. How many miles per hour?

A. That's 31.24 miles per hour.

Q. That's what the equivalent fixed barrier speed?

A. That's right.

Q. What does that mean to us?

A. Okay,. Well, when a vehicle crashes into a fixed barrier, it has kinetic energy, it has velocity and mass and the kinetic energy in the speed of the vehicle times the square of the speed, it loses that kinetic energy when it hits the barrier. The barrier was not moving before the impact or after, so its speed change was zero. That's the equivalent fixed barrier collision.

There is a change in speed if you strike a barrier at 30 miles an hour, from 30 miles an hour to zero or a net change of 30 miles an hour and that's equivalent to 60 miles an hour head-on collision between two vehicles and the reason for that is that in head-on collisons between two vehicles, each vehicle absorbs some of the kinetic energy so you get the collision deformation.

Whereas, in the fixed barrier case, one has a barrier that absorbs none of the energies of the collision and the vehicle that strikes it absorbs it all, so that's why the 30-mile per hour fixed barrier speed is equivalent to the 60-miles an hour --approximately equal to a 60-mile an hour head-on collision where the closing speed is 60-miles an hour.

Q. What is the significance that in this case the equivalent fixed barrier speed of the Datsun is 31.24?

A. The basic conclusion one determines from this is that the fuel tank integrity was not maintained at the motor vehicle standard of 30 miles an hour fixed barrier collision.

Q. The fuel integrity standard was no maintained?

your own w????????

MR. HAGARTY: Mark it for identification to expedite matters.

(Plaintiffs' Exhibit A for identification: Report.)

BY MR. HAGARTY:

Q. Mr. Dworetzky, what Federal Motor Vehicle Safety Standards are you referring to?

A. The ones governing rear-end collisions and I'm not -- I don't remember the number.

Q. Would it be 301?

A. I don't remember offhand.

Q. Do you have a copy of it?

A. I have copies of all of them back in my office, yes.

Q. Did you consult that before you made up that report?

A. Yes.

Q. Do you know when that standard become effective?

A. I don't remember the date. Early seventies.

Q. The early seventies?

A. Probably 1970.

Q. What does that standard require?

A. It requires that the vehicle maintain its integrity and especially the fuel tank system under 30 miles per hour fixed barrier collisions. Also has something to say about the occupants of the vehicle.

Q. The 30-miles an hour collison with a fixed barrior?

A. That's correct.

Q. Is that a front-end collision or rear end?

A. There's two separate standards, one for front and end and one for rear end and both require 30-miles an hour.

Q. Both fixed barriers?

A. Fixed barriers.

Q. And when did the current standard which is the one you referred to -- you referred to the current standard, is that right?

A. That's right.

Q. Is that the original standard from back in the early 1970s?

A. It may have been amended but I'm sure the speed hasn't changed.

Q. You're sure about that?

A. Yes.

Q. Do you know if there was any Federal Standard with regard to rear impacts in '71?

A. Like I said, I believe there was.

Q. Do you know?

A. I do not know at this moment.

Q. Number one, you don't know if there was a rear-end crash test among the Federal Motor Vehicle Safety standards in 1971, correct?

MR. AMES: I object. You're cross-examining your own witness.

MR. HAGARTY: He's not my witness as you well know.

MR. AMES: I thought I did. You noticed --

MR HAGARTY: Perhaps you did.

BY THE WITNESS:

A. I answered that I believed there was such a standard but at this moment, I didn't have any document to substantiate it with me.

Q. If you had a document to show otherwise, -- well, obviously --the present standard, it's your understanding, related to the fixed barrier rear-end impact at 30-miles an hour?

A. That's right.

Q. Not a moving barrier?

A. No, sir.

Q. And --

A. Once again, I have answered the question previously.

Q. What was your answer, that you know or didn't know?

A. I said that I have no document with me in which to -- to which I can refer, but there is a clear record obviously and that the standard may have been undergoing amendments since then but I do not believe the speed would have changed.

Q. In any event, you can't tell with certainty what standard was in effect in 1971?

MR. AMES: Object. Leading.

BY MR. AMES:

Q. Can you tell with certainty?

A. My answer again is I have answered that question very specifically.

Q. Would you answer it again for me. Can you tell us what the standard was in 1971?

A. I believe the same standard applied in 1970.

Q. That applies today?

A. That applies today.

Q. Would you consider an 86-mile per hour highway speed common place?

A. No, sir.

Q. It's unusual is it not?

ID: nht95-1.99

TYPE: INTERPRETATION-NHTSA

DATE: March 13, 1995

FROM: Dietmar K. Haenchen -- Manager, Vehicle Regulations, VOLKSWAGEN OF AMERICA, INC.

TO: Philip R. Recht, Esq. -- Chief Counsel, NHTSA

TITLE: Request for Information, FMVSS No. 118 "Power Operated Window, Partition and Roof Panel Systems"

ATTACHMT: ATTACHED TO 5/17/95 LETTER FROM JOHN WOMACK TO DIETMAR K. HAENCHEN (A43; STD. 118)

TEXT: Dear Mr. Recht:

This is a request for interpretation relating to the maximum squeezing force requirement in Paragraph S5 of FMVSS 118. Paragraph S5 states the maximum squeezing force performance requirements required to be met by power-operated window, partition or roo f panel systems (for simplicity we will hereinafter refer to these as "power operated systems") which are capable of being closed under conditions other than those permitted in Paragraph S4, Operating Requirements.

The purpose of Paragraph S5 is to enable manufacturers to provide power operated systems which can be closed with remote control devices capable of operation beyond the distances specified in S4 or under circumstances other than those expressly limited i n Paragraph S4 by providing an automatic reversing system that limits the squeezing force to 100 Newtons. The intent of the 100 Newton squeezing force limitation in Paragraph S5 is to avoid injury to a person whose hand may be caught in the opening of t he power operated system as it is closing.

The 100 Newton force limitation is a restriction on power-operated window and roof panel systems which must be assured of closing under all environmental conditions and especially under low temperatures or in the event of some ice or other interference i n the track of the window or roof panel. Volkswagen requests your interpretation whether a system which reverses the closing of the window partition or roof panel within the 100 Newton limitation on an initial attempt to close, but which is then capable of closing with a higher force limitation in order to overcome any resistance due to low temperature or snow and ice interference conditions would still comply with the provisions of the standard.

Such a system would operate as follows:

1. An attempt is made to close the power-operated system and because of an obstruction or resistance to closing it reverses before exerting a squeezing force of 100 Newtons or more and then stops.

2. In order to assure that the window or roof panel is closed, the operator again initiates the closing and this time the automatic reversal system is not triggered at the 100 Newton limit but at a higher force level to overcome the resistance.

The intent of the Standard and to requirement of paragraph S5 is that in the event of an initial obstruction from a human hand or possibly a pet, the system would reverse within the injury avoidance threshold of 100 Newtons. There is no specific provisi on in paragraph S5 with regard to repetitive closing operations. (The higher force level of the second closing operation is not a safety concern because the operator would be alerted to avoid action until the opening is clear and any person in the area w ould be alerted to the fact that the operator is attempting to close the window or roof panel.) Volkswagen therefore requests your interpretation whether the squeezing force limitation of Paragraph S5 applies only to the first operation of a system and n ot to subsequent operations immediately thereafter, which are separately initiated by an operator in order to assure the closing of the roof panel or power window under adverse conditions such as low temperature or the presence of ice in the window or ro of panel track.

Because the issue relates to certain vehicle design decisions, your response as soon as possible is requested and will be appreciated.

ID: nht90-2.8

TYPE: INTERPRETATION-NHTSA

DATE: APRIL 9, 1990

FROM: STEPHEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TO: FREDERICK H. DAMBACH -- PRESIDENT, EXECULINE

TITLE: NONE

ATTACHMT: LETTER DATED 8-2-89 TO STEPHEN P. WOOD FROM FREDERICK H. DAMBACH ATTACHED; (OCC-3790) TEXT:

This is in response to your letter requesting that I reconsider my conclusion in a July 26, 1989, letter to you interpreting emergency exit requirements contained in Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Window Retention and Release. I regret the delay in responding. As is explained below, after reconsideration, I must still conclude that exits located in the roof of a bus do not satisfy the requirement contained in S5.2 of Standard 217, that 40 percent of the required emergency e xit space on a transit bus must be located on each side of the bus.

Your August letter argues that roof exits must be counted in determining compliance with S5.2 because the standard does not specifically state that a side is that part of a bus that is perpendicular to the floor. Instead, relying upon provisions of the F ederal Highway Administration's (FHWA) regulations at 49 CFR Part 393, you assert that the side of a bus is any part to the left or right of the roof centerline. While this may be true under the FHWA regulations, those regulations are being used in a co mpletely different context than Standard No. 217, and concern lighting and marker requirements and specifications for towing for motor carriers. Standard 217, on the other hand, specifies requirements for the operating forces, opening dimensions, and ma rkings for emergency exits in buses to ensure readily accessible emergency egress from these vehicles. Because of the different purpose and context of standard 217 and the FHWA regulations, the definition of the word "side" is not necessarily the same f or those regulations. In fact, as I explained in detail in my previous letter to you, the structure and purpose of Standard 217 show that the word "side" has a different meaning in Standard 217 than it does when used by the FHWA in Part 393.

Moreover, and contrary to the assertion in your letter, Standard 217 is not a subpart of Part 393. Standard 217 is found in 49 CFR Part 571. The Standard is a Federal Motor Vehicle Safety Standard (FMVSS), administered by NHTSA. Under Federal law, thes e standards are applicable to manufacturers (including importers) of motor vehicles. On the other hand, Part 393, administered by the FHWA, is a part of the Federal Motor Carrier Safety Regulations, which are applicable to motor carriers. Although NHTSA and FHWA coordinate with each other to avoid conflicts in our respective regulatory programs, the FHWA does not have authority over motor vehicle manufacturers. Likewise, NHTSA does not have authority over motor carriers.

This agency has statutory authority to regulate the manufacture, importation, distribution, and sale of new motor vehicles and new items

of motor vehicle equipment. Additionally, our statute prohibits any manufacturer, distributor, dealer, or repair business from rendering inoperative any device or element of design installed on or in a vehicle in compliance with a safety standard. Howe ver, this agency has no authority to regulate the operation and use of vehicles. Hence, NHTSA cannot require the vehicles used in your company's fleet to comply with Standard 217 or any other Federal motor vehicle safety standards.

However, the individual States are free to regulate the operation and use of vehicles within their borders, provided that those regulations do not contravene any Federal laws or regulations. In this case, the State of New Jersey has chosen to adopt the provisions of Standard 217 and make it applicable to vehicles operated within New Jersey. This choice by the State of New Jersey does not contravene any of this agency's statutes or regulations. Thus, while I appreciate that New Jersey's decision to ap ply Standard 217 to vehicles operated in the State may have caused you difficulties, the wisdom and fairness of that decision is a matter to be decided by the State of New Jersey, not this agency.

I hope this information is helpful. Please contact David Greenburg of this office at (202) 366-2992 if you have any further questions.

ID: 2394y

Mr. Frederick H. Dambach
President
Execuline
997 Brook Rd.
Lakewood, NJ 08701

Dear Mr. Dambach:

This is in response to your letter requesting that I reconsider my conclusion in a July 26, 1989, letter to you interpreting emergency exit requirements contained in Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Window Retention and Release. I regret the delay in responding. As is explained below, after reconsideration, I must still conclude that exits located in the roof of a bus do not satisfy the requirement contained in S5.2 of Standard 217, that 40% of the required emergency exit space on a transit bus must be located on each side of the bus.

Your August letter argues that roof exits must be counted in determining compliance with S5.2 because the standard does not specifically state that a side is that part of a bus that is perpendicular to the floor. Instead, relying upon provisions of the Federal Highway Administration's (FHWA) regulations at 49 CFR Part 393, you assert that the side of a bus is any part to the left or right of the roof centerline. While this may be true under the FHWA regulations, those regulations are being used in a completely different context than Standard No. 217, and concern lighting and marker requirements and specifications for towing for motor carriers. Standard 217, on the other hand, specifies requirements for the operating forces, opening dimensions, and markings for emergency exits in buses to ensure readily accessible emergency egress from these vehicles. Because of the different purpose and context of Standard 217 and the FHWA regulations, the definition of the word "side" is not necessarily the same for those regulations. In fact, as I explained in detail in my previous letter to you, the structure and purpose of Standard 217 show that the word "side" has a different meaning in Standard 217 than it does when used by the FHWA in Part 393.

Moreover, and contrary to the assertion in your letter, Standard 217 is not a subpart of Part 393. Standard 217 is found in 49 CFR Part 571. The Standard is a Federal Motor Vehicle Safety Standard (FMVSS), administered by NHTSA. Under Federal law, these standards are applicable to manufacturers (including importers) of motor vehicles. On the other hand, Part 393, administered by the FHWA, is a part of the Federal Motor Carrier Safety Regulations, which are applicable to motor carriers. Although NHTSA and FHWA coordinate with each other to avoid conflicts in our respective regulatory programs, the FHWA does not have authority over motor vehicle manufacturers. Likewise, NHTSA does not have authority over motor carriers.

This agency has statutory authority to regulate the manufacture, importation, distribution, and sale of new motor vehicles and new items of motor vehicle equipment. Additionally, our statute prohibits any manufacturer, distributor, dealer, or repair business from "rendering inoperative" any device or element of design installed on or in a vehicle in compliance with a safety standard. However, this agency has no authority to regulate the operation and use of vehicles. Hence, NHTSA cannot require the vehicles used in your company's fleet to comply with Standard 217 or any other Federal motor vehicle safety standards.

However, the individual States are free to regulate the operation and use of vehicles within their borders, provided that those regulations do not contravene any Federal laws or regulations. In this case, the State of New Jersey has chosen to adopt the provisions of Standard 217 and make it applicable to vehicles operated within New Jersey. This choice by the State of New Jersey does not contravene any of this agency's statutes or regulations. Thus, while I appreciate that New Jersey's decision to apply Standard 217 to vehicles operated in the State may have caused you difficulties, the wisdom and fairness of that decision is a matter to be decided by the State of New Jersey, not this agency.

I hope this information is helpful. Please contact David Greenburg of this office at (202) 366-2992 if you have any further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ref:VSA d:4/9/90

ID: 1982-3.15

TYPE: INTERPRETATION-NHTSA

DATE: 10/28/82

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Department of Transportation; State of Hawaii

TITLE: FMVSS INTERPRETATION

ATTACHMT: ATTACHED TO LETTER DATED 04/13/89 FROM ERIKA Z. JONES -- NHTSA TO MABEL Y. BULLOCK, REDBOOK A33, STANDARD 205, VSA 103 (D), VSA SECTION 108 (A) (2) (A); LETTER FROM MABLE Y. BULLOCK AND LACY H. THORNBBURG TO SUSAN SCHRUTH -- NHTSA RE WINDOW TINTING, FEDERAL PRE-EMPTION OF STATE REGULATIONS, OCC 2142; NORTH CAROLINA STATUTE REGULATING WINDOW TINTING; LETTER DATED 12/18/87 FROM LACY H. THRONBURG AND MABEL Y. BULLOCK, SUBJECT MOTOR VEHICLES REGULATIONS OF DARK SHADED WINDOWS; PREEMPTION; LETTER DATED 05/06/88 FROM DAIRL BRAGG TO WILLIAM S. HIATT; LETTER DATED 04/04/85 FROM JEFFREY R. MILLER TO ARMOND CARDARELLI; REGULATIONS DATED 07/01/85 EST, FEDERAL AUTO SAFETY LAWS AND MOTOR VEHICLE WINDOW TINTING

TEXT:

Mr. Lawrence T. Hirohata Vehicle Equipment Safety Specialist Department of Transportation State of Hawaii 79 South Himitz Highway Honolulu, Hawaii 96813

Dear Mr. Hirohata:

This responds to your recent letter asking whether persons who apply tinted films to motor vehicle glazing would be considered motor vehicle distributors, dealers or repair businesses and thus be prohibited by section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act from rendering inoperative components that have been installed on vehicles pursuant to Federal Motor Vehicle Safety Standards.

The answer to your question is yes. The persons you described fall within classes of persons listed in section 108(a)(2)(A) and the application of tinted film to motor vehicle glazing can constitute "rendering inoperative." Section 108(a)(2)(A) of the Safety Act provides that:

"No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, 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,.... For purposes of this paragraph, the term "motor vehicle repair business" means any person who holds himself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation."

Without knowing more about the film appliers you described, we find it difficult to determine the number of classes into which they would fall. However, the film-appliers are clearly considered to be dealers. This conclusion is based on the definitions of "motor vehicle equipment" (section 102(4)), and "dealer" (section 102(7)). The tinted film is an item of motor vehicle equipment since it is an "accessory, or addition to the motor vehicle." Therefore, any person who sells the tinted film primarily to persons, typically vehicle owners, for purposes other than resale is a dealer. The status of such a person does not change because he or she also applies the film to motor vehicle glazing.

The film appliers you described may also be motor vehicle repair businesses. You stated that the film appliers argue that they are not repair businesses. Implicit in their argument is a narrow interpretation of the term "repair." We don't believe that such an interpretation was intended by Congress since it would frustrate Congress' stated purpose in attempting to ensure that safety equipment remains operative over the life of the vehicle. The only type of person mentioned in the legislative history as being permitted to render safety equipment inoperative is the owner of the Vehicle on which the safety equipment is installed. In addition, we believe that the references in the history to service, maintenance and replacement further suggest that a narrow interpretation was not intended.

The agency has consistently stated in its past letters of interpretation that the installation of tinted films on vehicle glazing constitutes rendering inoperative if the installation destroys the glazing's compliance with the light transmittance requirements of Safety Standard No. 205. The legislative history of section 108(a)(2)(A) provides that "render inoperative" includes permanent removal, disconnection or degradation of the safety performance of any element or design of a vehicle (Conference Report). Therefore, the activity described in your letter definitely falls within the scope of section 108(a)(2)(A).

In conclusion, it is the agency's opinion that businesses which are installing tinted films on motor vehicles and thereby destroying the glazing's compliance with the light transmittance requirements of Safety Standard No. 205 are in violation of section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. As such, the businesses are liable for civil penalties up to $1,000 for each violation.

Our Office of Enforcement is currently investigating the practice of applying tinted film to motor vehicle glazing. Accordingly, we have forwarded a copy of your letter and the advertisement to that office for its action.

Sincerely,

Original Signed By Frank Berndt Chief Counsel

Mr. Frank Berndt Chief Counsel Office of the Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D. C. 20590

Attention: Mr. Hugh Oates

Dear Mr. Berndt:

This is to reiterate my telephone request of August 5, 1982 relating to the federal interpretation of the phrase "motor vehicle repair business" as used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act).

In Hawaii, there are numerous businesses engaged in the trade of applying film or liquid tinting materials to motor vehicle window glass for a fee. All window glass, including those required for driver visibility, are tinted to a shade where under normal sunny condition the occupants or objects inside the vehicle cannot be readily visible from outside the vehicle. The minimum 70% luminous transmittance required for driving visibility as recommended in the American National Standard (ANS) Z26.1 and referenced by the Federal Motor Vehicle Safety Standard (FMVSS) 205 are being rendered inoperative by these businesses.

We believe these businesses may be in violation of the Act. However, the operators of these businesses contend that they are not in the motor vehicle repair business because they do not repair anything mechanical. They perform only superficial facelifting of vehicle exterior.

In your opinion, would you consider these businesses as a motor vehicle repair business within the scope of the Act? Can these businesses also be considered as a distributor or dealer of "motor vehicle equipment" as defined in Section 102(4), (6) and (7) of the Act?

Enclosed is a typical advertisement offering a special for auto glass tinting by a business here in Honolulu. This ad appeared in the August 13th issue of a weekly classified ad.

We would appreciate any legal opinion or assistance you can share with us to effectuate a solution to this monstrous problem.

Thank you for your cooperation.

Sincerely,

LAWRENCE T. HIROHATA Vehicle Equipment Safety Specialist

ID: 2867yy

The Honorable Bill McCollum
U.S. House of Representatives
1801 Lee Road, Suite 301
Winter Park, FL 32789

Dear Mr. McCollum:

Thank you for your inquiry on behalf of your constituent, Mr. Perry Faulkner. Mr. Faulkner requested a written interpretation about whether casings imported into this country are required to have the "DOT number." A "casing" means a used tire to which additional tread may be attached for the purpose of retreading. As explained more fully below, casings for retreaded passenger car tires must have the DOT symbol, but casings for tires for use on vehicles other than passenger cars (referred to as "truck tires" in this letter) are not required to have the DOT symbol.

At the outset, I note that Mr. Faulkner's letter stated that the "DOT number" on a tire indicates that the Federal excise tax has been paid. That statement is inaccurate. The "DOT number" on a tire only represents the manufacturer's or retreader's certification of compliance with this agency's standards and regulations. If Mr. Faulkner wants further information about Federal excise taxes on tires, he may wish to contact the Internal Revenue Service, since that agency administers the Federal excise taxes.

Mr. Faulkner is mixing two different types of markings when he refers to a "DOT number." The first type of marking is the symbol "DOT." This marking by a tire manufacturer or retreader on a tire is a certification that the tire complies with an applicable Federal motor vehicle safety standard. Federal safety standards applicable to tires include Standard No. 109 for new passenger car tires, Standard No. 117 for retreaded passenger car tires, and Standard No. 119 for new truck tires.

Standard No. 117 (the retreaded passenger car tire safety standard) includes a requirement that all passenger car tire casings to be retreaded must include the symbol "DOT." See S5.2.3(a). Therefore, it is illegal to sell or import into this country any passenger car tire casings that are not marked with the symbol "DOT." However, none of our Federal safety standards set forth requirements for retreaded truck tires. Since there is no standard for retreaded truck tires, there is no requirement that casings for retreaded truck tires be marked with the DOT symbol. I have enclosed a June 18, 1981 letter to Mr. Roy Littlefield that offers a more detailed discussion of this issue.

The second type of marking to which Mr. Faulkner referred was the tire identification number specified in Part 574. This number identifies the manufacturer or retreader of the tire, along with the date of manufacture or retread and other attributes of the tire. A tire identification number is not required on any casing: Standard No. 117 does not require this marking on passenger car casings, and as explained above, there is no Standard for casings for truck tires. Please note, however, that Part 574 requires all finished retreads, including retreaded truck tires, to be marked with the retreader's identification number.

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

Sincerely,

Jamie McLaughlin Fish Director, Intergovernmental Affairs

Enclosure Ref: 117#119 d:3/l3/9l