ID: nht93-2.13

DATE: 03/11/93

FROM: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

TO: THOMAS L. WRIGHT -- COORDINATOR, TECHNICAL SUPPORT UNIT, STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 12-29-92 FROM THOMAS L. WRIGHT TO PATRICK BOYD (OCC 8210)

TEXT: This responds to your letter to Patrick Boyd of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Standards, concerning window tinting. Your letter has been referred to my office for reply.

Your questions relate to a January 22, 1992 (57 FR 2496) notice of proposed rulemaking (NPRM) on the tinting requirements of Safety Standard No. 205, "Glazing Materials." You ask about the status of the NPRM. The agency received a large number of comments on this rulemaking. We have reviewed the comments and are analyzing the issues raised in this rulemaking.

You also ask about a statement in the NPRM about Federal preemption of state window tinting laws. You ask whether Federal law preempts a state law that permits add-on window tinting material for medical or aesthetic reasons.

As explained below, the answer is no, provided that the state law regulates conduct other than that regulated by Federal law. Your question was addressed in the NPRM's discussion of the Federalism implications of the proposed rule (p. 2507).

By way of background, NHTSA issued Standard 205 under the authority of the National Traffic and Motor Vehicle Safety Act. 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.

Section 103(d) of the Safety Act provides that:

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.

Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. 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 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.

The effect of this 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.

I have enclosed a copy of the Report to Congress on Tinting of Motor Vehicle Windows which you requested. I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

ID: nht93-2.14

DATE: March 11, 1993

FROM: Samuel Kimmelman

TO: Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 3-31-93 from John Womack to Samuel Kimmelman (A41; Std. 108); Also attached to letter dated 11-1-89 from Stephen P. Wood to Samuel Kimmelman

TEXT: Enclosed is a copy of a letter dated Nov. 1, 1989 from NHTSA, signed by the then Acting Chief Counsel Stephen P. Wood.

In the next to last paragraph Mr. Wood states that NHTSA requires the front hazard waning lamps must continue to operate even when the stop lamps are activated.

Does NHTSA continue to hold to the requirement as put forth in Mr. Wood's letter or has this requirement been revised?

ID: nht93-2.15

DATE: March 12, 1993

FROM: Scott R. Dennison -- Vice President, Production, Excalibur Automobile Corporation

TO: Robert Hellmuth -- Director, Office of Vehicle Safety Compliance, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-19-93 from John Womack to Scott R. Dennison (A41; Part 555)

TEXT: I am writing on behalf of the Specialty Car Industry in general and Excalibur in particular to offer my input and assistance regarding the alleged debate over the treatment of vehicles replicating pre-safety standard vehicle designs and their compliance with current Federal Motor Vehicle Safety Standards. This has long been a difficult area for the industry to understand since most of the manufacturers of these vehicles are ultra low volume manufacturers. I was briefly involved with the limousine industry in 1989 when NHTSA began to work cooperatively with them to achieve practical compliance and would like to see the our industry and NHTSA do the same.

As you are aware, the Environmental Protection Agency has created a very specific set of guidelines for the specialty car industry to allow them to produce compliant automobiles without the need for "legitimate" FTP-testing. It is my opinion that the same type of policy is possible to bring the specialty cars up to an acceptable standard where there are those who now fall short. I also believe that we, as a $100 million plus industry, can internally weed out the undesirable, poor quality builders and manufacturers and essentially police ourselves, not unlike the limousine converters. The biggest hurdle this industry faces is a way to interpret and apply the "rules" in a cost effective manner which will allow us to remain in business.

I am aware that the "Hot Rod" industry is heavily engaged in the same type of effort at this time. However, they have an advantage that we do not have as most hot rods and muscle cars were produced by major "legitimate" manufacturers and were "real" cars at one time. Even though we may build a car replicating a 1934 Mercedes or a 1966 Cobra, we are still building a 1993 vehicle requiring 1993 compliance. In most cases, the original body style necessary for marketing reasons does not readily lend itself to current compliance regulations. Ergo, our dilemma.

I would like to hear your opinion and would look forward to participating in the decision making process wherever possible. Please let me know what I can do to assist. I am looking forward to your response.

ID: nht93-2.16

DATE: March 15, 1993

FROM: Kirk Brown -- Secretary, Illinois Department of Transportation

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-22-93 from John Womack to Kirk Brown (A41; VSA S108(a)(2)(A); FMVSS 124)

TEXT: I am requesting your opinion whether modifying the throttle controls on a school bus so that a short person can operate it would jeopardize the manufacturer's certification that a bus is in compliance with the Federal Motor Vehicle Safety Standards. I have enclosed a copy of a letter from School Services and Leasing, Inc. which has requested this opinion from the state of Illinois and, apparently, other states. Rather than have each state render possibly differing opinions on this question, it would be appropriate for NHTSA to respond to this company's questions.

If it is your opinion that this modification would violate Federal Motor Vehicle Safety Standards for buses, would you also advise this company whether it might obtain a waiver for this modification for particular buses.

I look forward to a response to these questions from you.

Attached to letter dated 2-22-93 from George Marter, School Services and Leasing, Inc. to Curt Brown, Illinois Department of Transportation.

(Text omitted)

ID: nht93-2.17

DATE: March 16, 1993

FROM: Steve Thomas -- General Manager, Texas Bragg Enterprises

TO: Walter Meyers -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-14-93 from John Womack to Steve Thomas (A41; Std. 119; Std. 120)

TEXT: I have several of my dealers that are wanting to buy their trailers from me without tires or without tires and wheels.

I am reasonably sure that they do not have fourteen (14) customers at a time wanting to put their own tires and wheels on their trailers. I do believe that they will be installing used tires or used tires and wheels on these trailers once they got them to their places of business. Since I know this is against the law can I legally sale the trailers to my dealers like this and if so, do I need them to sign some kind of waiver or a form stating they bought the trailers from me without tires or wheels?

ID: nht93-2.18

DATE: March 16, 1993

FROM: Bob Brinton -- Friction Advisory Service

TO: Office of Chief Council -- U.S. Department of Transportation, NHTSA

TITLE: Subject: Interpretation of Parking

ATTACHMT: Attached to letter dated 5-6-93 from John Womack to Bob Brinton (A41; Std. 121); Also attached to letter dated 12-9-76 from Frank A. Berndt to Leon W. Steenbock (Std. 121)

TEXT: According to FMVSS 121 a mechanical locking device must be in place within 3 seconds of actuating the parking brake control. In the case of some vehicles, especially refuse type trucks with right hand side drive, there are several systems that use either an I.C.C. flip switch valve or a push pull valve to park the vehicle on air only when the driver leaves the vehicle to pick up trash. The air park is used so that spring brakes are not applied avoiding extreme wear cycles on the spring. Is this type of parking considered legal or should all vehicles when they are parked and the driver leaves the cab have a mechanically held parking brake function? It is my understanding that new O.E.M. certified vehicles are being built with this air park work brake and many right hand drive conversion companies are also installing this type of air park configuration.

As an accident investigator I need to know if NHTSA considers this air park illegal or non-certifiable to meet the intentions of FMVSS 121 Sec. 5.6.3. Your prompt attention to this request is appreciated.

ID: nht93-2.19

DATE: March 18, 1993

FROM: Philip Trupiano -- Auto Enterprises, Inc.

TO: Taylor Vinson -- Office of Chief Counsel, U.S. Department of Transportation, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 3-31-93 from John Womack to Philip Trupiano (A41; Part 592)

TEXT: Pursuant to our phone conversation of this date, I now write to you seeking a interpretation of Sec S92.6 and 7 and the application of those sections to a proposed vehicle entry under the Registered Importer (RI) program. The facts for the proposed importation are as follows:

1. The vehicle is a 1984 Ford 9000 heavy duty truck. A current Canadian safety certification obtained from the required annual safety inspection exists. Ford Motor Company has already supplied verbal notice and a written letter stating the compliance of this truck with the U.S. FMVSS. Because this is obviously a commercial vehicle, NHTSA's policy does not allow entry under the personal use program; an RI is necessary.

2. The owner of the vehicle, a farming and trucking operation, is in North Dakota. The vehicle is currently in Manitoba, just above the North Dakota border. The proposed port of entry would be on the North Dakota/Canadian border, at least 2000 (driving) miles away from Detroit, Michigan where we are located.

3. Because of the distance involved, we propose to facilitate the entry my mailing the previously prepared (by Auto Enterprises) RI Certification Label to our customs broker (and authorized agent who already has our Power of Attorney) at the port of entry so that he can affix the label and take the appropriate photographs. The same customs broker is also acting on our behalf in filing the necessary Customs documents. The photographs would then be returned to us for subsequent inclusion with our Statement of Conformity and request for bond release which will be sent to NHTSA. We now ask your interpretation of the regulations to determine whether we, as the RI, using this arrangement, satisfy the requirement of 692.6(d).

4. The language in our present contract with the Importer (owner) states that the Importer "agrees not to sell, lease, title or register the vehicle or operate the vehicle on public roads prior to the issuance of DOT bond release".

Due to the logistics of the distances involved, the holding area and available inspection site for this proposed entry would be the Importer's company lot. The Importer would physically be unable to license or title the truck (due to lack of the necessary Customs Form 7501 or DOT release which must be supplied to the State licensing bureau) prior to actual DOT release or the expiration of the proscribed 30 day period. Since only Auto Enterprises has access to the Customs Form 7501 (Commercial Entry), our ability to withhold this important document would preclude licensing or titling (and, thus the ability to operate the truck) in any State. In view of these facts, we now ask your interpretation of the regulations to determine whether we, as the RI, using this proposed entry arrangement, satisfy the requirement of 591.8(d)(3) and

592.8(a).

To this date, Auto Enterprises has not made any entries with circumstances similar to those above. However, the party described above is waiting on a determination of these issues so that we may enter his truck as immediately as circumstances permit. We believe that a determination which is unfavorable would create an unnecessary economic hardship on the Importer as he would have to drive or transport the truck an additional 4000 miles for entry and storage in Detroit. Further, as the original manufacturer, Ford Motor Company, has already issued a letter stating compliance, this vehicle would otherwise be eligible for importation without an RI if this were a personal use basis. If you have any questions, please feel free to call me at (313) 589-3600. Thank you for your time and attention to this matter. We await your reply.

Attached to letter dated 9-17-92 from Holt M. Johnston, Ford Motor Company, to Peter Fehr, Flexi-Coil Limited, re: FMVSS 108 and FMVSS 121. Also attached to Louisville Truck Centre Work Order re: FMVSS 121.

(Text omitted.)

ID: nht93-2.2

DATE: March 1, 1993

FROM: Peter Drymalski -- Investigator, Montgomery County Government, Office of Consumer Affairs

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Application of 15 U.S.C. Section 1403 to the "Cannibalization" of Unsold New Cars for Repair Parts

ATTACHMT: Attached to letter dated 5/3/94 from John Womack to Peter Drymalski (A42; Part 567; VSA S108(a)(2)(A))

TEXT:

I am writing to request your office's assistance on an issue that has been brought to our office and which may involve Federal laws enforced by your agency.

A local new car dealer recently sold two 1993-model year vehicles. Shortly after the sale, both vehicles were returned for power steering pump failures. The dealer and the distributor had no power steering pumps in stock and had to order them from Japan. This resulted in a lengthy delay in completing the repairs, so much so, in fact, that the 30- day out-of-service deadline of the Maryland Lemon Law (Commercial Law Article, Section 14-1502(d)(2) was about to come into play.

According to the dealer, the distributor advised the dealer to remove two power steering pumps from other, unsold, 1993 models and install them on the two vehicles awaiting parts. The dealer refused, believing that this was illegal. Fortunately for the distributor, the parts then arrived and the repairs could be completed within the 30-day deadline. Nonetheless, the distributor has apparently insisted that the dealer prove its claim that the cannibalization of unsold vehicles is illegal.

I do not know of any Maryland law that prohibits this, although our laws would probably require the dealer to disclose the repairs when it sells the cannibalized cars as "new" after they're repaired.

However, such cannibalization may affect the cannibalized cars' certifications under 15 U.S.C. 1403 and 49 C.F.R. Part 567, or under other laws. Is such cannibalization allowed and, if so, on what conditions?

I will appreciate your office's review of and assistance on this matter.

Thank you very much.

ID: nht93-2.20

DATE: March 18, 1993

FROM: Jeffery A. Kester -- Product Development, Green Wheels Electric Car Company

TO: John Womack -- Acting Chief Consul, NHTSA

TITLE: Re: Electric Vehicle Conversions and the FMVSS

ATTACHMT: Attached to letter dated 4-21-93 from John Womack to Jeffery A. Kester (A41; 108(a)(2)(A))

TEXT: I have recently spent a few enjoyable afternoons on the phone with various members of the DOT, and now I find my path leads to you. The recommendation to write to you comes from Z. Taylor Vinson and he believes you may be the one to clarify my current dilemma.

I am a principal partner in a company that intends to produce electric vehicles (EVs) for retail sale. We are not building our EVs from scratch. Instead, we intend to perform conversions on existing (used) internal combustion engine vehicles (ICEVs). We are currently converting a 1981 Volkswagen Rabbit and intend to convert VWs of similar (1975-1984) vintage. We plan to expand our vehicle conversion operations to include 1985 and newer VW models, but we have no intention of converting new vehicles. Therefore, according to section 108, (b)(1) of the National Traffic and Motor Vehicle Safety Act (2/92 rev.), I am not bound to comply with the FMVSS and have no reason to petition for exemption from any standards in the FMVSS.

That's the rub. NTMVSA section 108(a)(2)(A) says in simple terms that I cannot "render inoperative ... any device or element of design ..." unless I believe it will not be used during the time it is rendered inoperative. I understand the purpose of this subsection, (I was in auto repair/restoration for over 12 years) but I believe it takes on new aspects when applied to rendering inoperative "devices or elements of design" on a permanent basis. The vehicle will obviously be used during the time such devices or elements of design no longer exist.

Have I found the fabled Catch 22?--I cannot receive exemptions from the FMVSS because I intend to convert cars subsequent to their first purchase (section 108 (b)(1)) so those standards do not apply, yet it appears that I will be in gross violation of section 108(a)(2)(A). I may have found a way to satisfy the needs of both sections, but it entails some creative interpretation of section 108(a)(2)(A).

The interpretation is as follows: I should be able to render inoperative devices or elements of design without violating the FMVSS, because I believe that said inoperative devices or elements of design will not compromise vehicle compliance to applicable Federal motor vehicle safety standards during the time said motor vehicle is in operation. The paramount wording of section 108(a)(2)(A) is "... applicable Federal motor vehicle safety standards ..." I submit the example of the ICEV fuel system to which many FMVSS apply. Since that fuel system will mo longer exist on an EV conversion, there will be no applicable Federal motor vehicle safety standards in regard to the EV fuel system, and I will not have rendered inoperative a device or element of design of an applicable FMVSS.

The other operative phrase of section 108(a)(2)(A) is "... unless such ... business reasonably believes ..." I submit that I must have some basis for my belief in regard to the safety of the vehicle with devices or elements of design that I have rendered inoperative, and that basis must come from the FMVSS.

That brings me to you. I require something more than the right to tell the local Registry of Motor Vehicles (RMV), and any prospective customers, that my vehicles comply to the FMVSS simply because I believe they do and that the FMVSS does not really apply anyway because I sell used vehicles. I hereby request your action on the following matters:

1) That you submit to me in writing your recommendation of the viability of my interpretation of section 108(a)(2)(A) and (b)(1) of the NTMVSA.

2) That, if you believe my interpretation to be viable, you submit a letter stating such that I may distribute to prospective clients and/or the RMV to aid me in convincing them of the safety of converted EVs.

3) That you submit to me in writing, your recommendations for any further action in regard to compliance with section 108(a)(2)(A).

4) That you submit to me in writing, any information or source for information concerning petition for exemption from section 108(a)(2)(A) under section 108 (a)(2)(B) if applicable.

5) That you submit to me in writing, any information or source for information concerning the status of any report, study or investigation resulting from section 108(b)(1) concerning the establishment of uniform Federal motor vehicle safety standards applicable to all used motor vehicles.

The reason for all of this is very simple. I want to do the right thing in regard to motor vehicle safety. The fact that used cars that I convert are not required to be in compliance with the FMVSS, will not make those vehicles safe. I am attempting to design safe, reliable vehicles that I can produce on a small-scale production basis. As one of the few professional mechanics involved in the EV industry (a somewhat un-nerving fact that I have discovered over thelast year), I am very concerned that other companies may not be aware of what they are doing to the structural integrity of an ICEV when they convert it to an EV. Many of these small companies have had no contact whatsoever with DOT, or they simply opt to offer "conversion kits" which release them from any safety liability. There is currently an explosion in the small-scale EV industry, with many companies claiming to convert any ICEV to an EV. This is definitely good but it is happening faster than safety regulations are being made. Public acceptance of these vehicles is promising but so far, has been full of skepticism about safety and reliability. I believe that without some kind of Federal regulatory intervention, the poor performance and possibly disastrous outcome in the event of an EV crash, will lead to the abandonment of the modicum of public interest now being express in the EV industry.

The general opinion of the public and press is that EVs are interesting, but will not represent a viable transportation alternative until better batteries

are in production and available at a reasonable price. I am confident that better batteries will be available in the next few years. I am concerned that, their will be no standards in place to regulate how those batteries are integrated into the automobile industry. We are faced with the problem of EV safety right now, and I believe that some action must be taken now to remedy the situation.

Thank you very much for taking the time to read this, if you have any, questions or comments about this letter or anything to do with EVs, please do not hesitate to write or call. I hope I hear from you soon.

ID: nht93-2.21

DATE: March 19, 1993

FROM: Connie Hafenstine -- Chief, Bureau of Personnel Services, Kansas Department of Transportation; Larry Bluthardt -- Director of Pupil Transportation, Kansas Department of Transportation

TO: Patricia Breslin -- Director, Office of Vehicle Safety Standards

TITLE: None

ATTACHMT: Attached to letter dated 4/22/93 from John Womack to Larry Bluthardt (A41; Std. 124)

TEXT: I'm in receipt of a letter from one our Contract Managers concerning the use of built-up foot operated throttle controls. The following questions were asked:

1. Is there any violation of the FMCSR'S in conjunction with the FMVSS concerning the modification of a school bus foot operated throttle control or other equipment modifications that may relate to the physical accommodation of a commercially licensed driver to perform his or her duties behind the wheel?

2. If we can modify the foot operated throttle control to the vehicle (school bus), does the modification require specific registration, certification or inspection prior to the installation?

FOR EXAMPLE: Can the modification be made and installed locally, or should the modification be purchased and installed by a certified commercial vendor i.e., manufacturer.

Thank you for your assistance. We await your reply.