ID: 12626.MLS

Mr. Eric M. Zimelman
6920 S.W. 44th Street, Suite 210
Miami, FL 33155

Dear Mr. Zimelman:

This responds to your letter asking whether your invention would "pose a problem" with Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child Restraint Systems. You met with our technical staff, including Mr. Jerome Kossar, Mr. George Mouchahoir, and Ms. Lori Summers, to discuss your invention, which is a retractable shield placed over safety seats for children up to 20 pounds. You state that the retractable shield "would be far enough away from the child's head that the child would not pitch forward enough to come in contact with it." You further state that the shield's material is a tough, flexible plastic that is transparent and has holes for breathing.

I note that you marked "confidential" on your letter. In a November 4, 1996, telephone conversation with Mr. Marvin Shaw of my staff, you stated that as long as the diagrams remain confidential, you had no objection to our placing your letter in the public docket.

By way of background information, this agency, the National Highway Traffic Safety Administration (NHTSA), has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. The following represents our opinion based on the information in your letter.

There is currently no FMVSS that directly applies to your product. Our standard for "child restraint systems," FMVSS No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 50 pounds or less." (S4 of FMVSS No. 213) The standard does not apply to child seat accessories that are sold separately from the child seats, such as an aftermarket retractable shield.

While no Federal safety standard applies to the retractable shield, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 United States Code 30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event that you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, a motor vehicle manufacturer, distributor, dealer or repair business is prohibited by our statute from installing the retractable shield if the installation "makes inoperative" compliance with any safety standard, such as FMVSS No. 213.

You should be aware that some elements of design incorporated in child restraint systems in compliance with FMVSS No. 213 might be affected by adding your retractable shield. In particular, under section S5.7, all child restraint systems are required to incorporate the flammability resistance requirements of S4 of FMVSS No. 302. Also, child restraint systems recommended for use by children weighing less than 20 pounds must comply with paragraph S5.2.3.2 of FMVSS No. 213. That paragraph requires that each child restraint surface contactable by the child dummy's head during the crash test shall be covered with slow recovery energy absorbing materials with specified characteristics. This requirement ensures that children riding in these child restraints will not suffer unnecessary head injuries during crashes. If the installation of your retractable shield by a manufacturer, distributor, dealer, or repair business would impair features provided in compliance with these or other provisions of the standard, then the entities would make inoperative a Federally required element of design in violation of the statute.

The "make inoperative" prohibition does not apply to individual owners who install equipment on their own child restraints systems. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages owners not to degrade the safety of their child restraints.

I hope this information is helpful. If you have any other questions, please feel free to contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

ref:213

d:12/2/96

ID: nht89-1.67

TYPE: INTERPRETATION-NHTSA

DATE: 04/05/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JAMES L. OBERSTAR -- U.S. HOUSE OF REPRESENTATIVES

TITLE: NONE

ATTACHMT: LETTER DATED 03/07/89 FROM JAMES L. OBERSTAR TO ERIKA Z. JONES -- NHTSA

TEXT: Dear Mr. Oberstar:

Thank you for your recent letter on behalf of Mr. Joseph Mikoll regarding occupant protection devices for school buses with a gross vehicle weight rating of 10,000 pounds or less. You indicated that you had read my November 3, 1988 letter to Mr. Mikoll. In that letter, I explained that Mr. Mikoll's "safety bar" devices could not be installed in small school buses in place of safety belts at every seating position, but that "safety bars" could be installed in addition to the required safety belts. I a m pleased to have this opportunity to answer your two additional questions on this subject.

Question 1: Is there a procedure that [Mr. Mikoll's company] could follow to request a waiver of the provisions of Standard No. 222 which would allow its safety bar devices to be the sole passive restraint on small buses?

The National Traffic and Motor Vehicle Safety Act contains only one provision that would allow this agency to exempt vehicles from compliance with Standard No. 222 or any other applicable Federal motor vehicle Federal safety standard. Under the condition s specified in section 123 of the Safety Act (15 U.S.C. 1410), a motor vehicle manufacturer could file a petition asking this agency to temporarily exempt a group of motor vehicles from compliance with a safety standard or standards. Thus, a school bus manufacturer that wishes to install "safety bars" in some of its buses in lieu of the safety belts required by Standard No. 222 could seek a temporary exemption from Standard No. 222 for some of its buses.

It is my understanding that, while Mr. Mikoll's company manufactures the "safety bars" and other motor vehicle equipment, it does not manufacture any motor vehicles. If this understanding is correct, Mr. Mikoll's company is not eligible to file for a temporary exemption.

Question 2: Are DOT funds available to firms such as [Mr. Mikoll's company] to do rigorous testing and R&D on passive restraint systems?

This agency generally does not provide research and development support for unsolicited proposals, although we may solicit research proposals and award such contracts on a competitive basis. In addition, the Department has a Small Business Innovation Re search Program that Mr. Mikoll may wish to learn more about. I have enclosed a guide on submitting proposals. This program is administered by the Transportation Systems Center, Kendall Square, MA 02142. Dr. George Kovatch is the Program Coordinator. H owever, Mr. Mikoll should be aware that funds for unsolicited proposals and small business development are extremely limited right now.

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

Sincerely,

ENCLOSURE

ID: nht87-2.54

TYPE: INTERPRETATION-NHTSA

DATE: 07/17/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Ms. Marsha Jay

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. Marsha Jay Administrative Assistant Texas Automobile Dealers Association P. O. Box 1028 Austin, TX 78767-1028

Dear Ms. Jay:

This responds to your June 5, 1987, letter on behalf of a member of your association who wishes to sell a 12-passenger van to a school. In a June telephone call, you asked also about our requirements for persons reducing the passenger capacity of a new b us to nine or fewer.

As explained below, a 12-passenger van sold to a school is a "school bus." The dealer who sells such a van to a school must therefore sell a certified school bus.

The National Traffic and Motor Vehicle Safety Act authorizes this agency to establish safety standards for new motor vehicles. Under our regulations, a new vehicle designed for carrying 11 or more persons (including the driver) is considered to be a "bus ," and is considered to be a "school bus" if sold for school-related purposes. A new "school bus" must meet all Federal safety standards applicable to buses, and also those specifically applicable to "school bus," including Standard 217, Bus Window Reten tion and Release, Standard 222, School Bus Passenger Seating and Crash Protection, and Standard 301, Fuel System Integrity. The Act requires each person selling a new school bus to ensue that the nonconforming bus for school bus use will subject the sell er to a civil penalty of up to $1000 for each vehicle and up to $800,000 for a related series of violations.

You specifically asked about our safety belt requirements for 12-passenger school buses. Safety Standard No. 222 requires safety belts only for passengers on each school bus with gross vehicle weight rating (GVWR) of 10,000 pounds or less. The Driver's s eating position in any bus, regardless of its GVWR, must have a safety belt under a separate standard for occupant crash protection. Since you are interested in reviewing the standards which apply to small school buses, I have enclosed an information she et that describes how you can obtain copies of our safety standards and other regulations.

Federal law does not prohibit a dealer from removing seats from a 12-passenger bus, However, Federal law sets limits on how the alteration may be made. A dealer restricting the passenger capacity of a new bus to 9 or fewer before the vehicle is sold or d elivered to the owner is considered as "alterer" under our regulations. (49 CFR S567.7, Requirements for Persons who Alter Certified Vehicles.) Such an alteration changes the vehicle's classification to that of a multipurpose vehicle (MPV). As a result, the person modifying the new vehicle would be required to certify that the vehicle complies with all of the standards applicable to MPV's. Among other things, this would entail the installation of safety belts at all seating positions.

I hope this information is helpful. Please contact me if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

Ms. Deirdre Hom NHTSA Office of Chief Counsel Room 5219 400 7th St. S. W. Washington D. C. 20590

Dear Ms. Hom:

I spoke to someone in your office recently regarding Federal Regulations concerning the use of multi-purpose passenger vehicles being used to transport children. One of our dealers would like to sell twelve-passenger vans which would be used to transport school children. He has questioned the rules and regulations regarding the following:

1. Seat Belts

2. Other Safety Standards

3. Seller liability, provided that the vehicles comply with Federal Standards.

I will relay this information to our dealer as soon as I receive it from you. Your help in this matter is very much appreciated.

If you have any questions, please do not hesitate to call.

Sincerely,

Marsha Jay Administrative Assistant

ID: nht93-4.21

DATE: June 3, 1993

FROM: Richard Glover -- Director of New Product Development, Evenflo Juvenile Furniture Company, Inc.

TO: Deirdre Fujita -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 10/20/93 from John Womack to Richard Glover (A41; Std. 213)

TEXT:

I had attempted to call you concerning the possibility of including a bar code which could be automatically scanned at the bottom of the Car Seat Registration Card which consumers fill out. This bar code would contain model number, date of manufacturer, and serial number for the product that the card represents. We feel that by adding an automatically scanned bar code section to the card, that it will eliminate the possibility of mis- keying any of this information, in as much as the human element has been removed from the card. We would request a white section to be allowed in the portion of the card which is currently specified to be a 10 percent minimum gray scale background. I have sent you a mock up of the possible location that this bar code may reside in, for your consideration. We have noticed on the cards which are coming back to us at Evenflo so far, that if any postal damage has occurred to the card, that is very likely to occur on the bottom edge of the card. As a result of that, it may be more advantageous to move this white space into the area immediately below the area that the consumer fills in. It would be approximately the same width as the zone that the consumer fills in, and simply be a white space slightly further down into the card. It would leave the gray background around the outside perimeter of the card and would allow us space to openly print the model number, date of manufacture, and serial number in case there were any difficulties in bar code reading.

I would appreciate your consideration of this matter. Please advise us, as we are near the point of having to print additional cards at this time, and release printing lots to our printing company are at a rate of 500,000 cards per lot. If this will require a petition for a change in the current rules, please advise me so that we may petition as soon as possible. I remain,

Attachment (Child Restraint Registration Card) omitted.

ID: nht92-9.9

DATE: February 14, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael A. Martin -- Program Manager, Bureau of Highway Safety, Augusta, Maine

TITLE: None

ATTACHMT: Attached to letter dated 12/9/91 from Michael A. Martin to Mary Versailles (OCC 6747); Also attached to letter from Erika Z. Jones to Martin V. Chauvin

TEXT:

This is in regard to your letter of December 9, 1991, regarding school buses. Your three questions are addressed below.

1. (W) hat is the general rule to which states need to comply with regarding Federal school bus safety standards? What bus safety modifications would not be restricted by 15 U.S.C. 1392(d)?

Section 103(d) of the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1392(d)) 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. Nothing in this section shall be construed to prevent ... any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard than that required to comply with the otherwise applicable Federal standard.

Section 103 (d) preempts state requirements for school buses covering the same aspect of performance as an applicable Federal motor vehicle safety standard (FMVSS) that are different from the applicable FMVSS except to the extent that the requirements impose a higher level of performance and apply only to vehicles procured for the State's use. A state law imposing higher requirement would be preempted under S103(d) to the extent that the law requires all school buses manufactured for use in the state to comply with the law. The law would not be preempted to the extent that it applies to public school buses. The agency has previously interpreted the phrase "vehicles procured for (the State's) own use" to include public school buses and school buses operated and owned by a private contractor under contract to transport children to and from public school. See, for example, February 20, 1987 letter to Mr. Martin Chauvin (copy enclosed).

2. Would Federal safety standards restrict a state

from requiring safety belts on school buses?

A state requirement that all school buses be equipped with safety belts regulates the same aspect of performance as the Federal standard for school bus occupant crash protection (FMVSS No. 222, School Bus Passenger Seating and Crash Protection) and would not be identical to that standard for large school buses (those with a gross vehicle weight rating (GVWR) over 10,000 pounds). FMVSS No. 222 requires school buses to provide passenger crash protection through a concept called "compartmentalization." Providing compartmentalization entails improving the interior of the school bus with protective seat backs, additional seat padding, and better seat spacing and performance. These interiors are intended to keep occupants in their seating area and protect them during a crash. FMVSS No. 222 requires the additional protection of safety belts at each passenger position in small school buses (10,000 pounds or less GVWR) because these buses experience greater force levels in a crash.

A state requirement for safety belts on school buses would be identical to the level of performance required for small school buses, but would specify a different level of performance for large school buses. However, because the state requirement specifies a higher level of performance for large school buses than that required by FMVSS No. 222, Maine may require the installation of safety belts in school buses procured by the State or its political subdivisions, as long as the Federal requirements for compartmentalization are not compromised.

3. Could a school bus fleet modify the rear lighting configuration of their buses (8 light system) to reduce the potential for other vehicles rear-ending buses during poor visibility conditions, e.g., fog? ... The proposed change is to replace the white 8 inch back-up lights with 8 inch red sealed beam warning lights similar to the two at the upper level of the rear end of the bus. These would flash in an alternating criss-cross fashion when the bus is stopped loading or discharging students. The small white lights at the lowest level of the rear end of the bus would each be replaced with white, universal backup lights angled to also direct their beams at 45 degree angles out from the rear of the bus.

The answer to your question is yes if the school district or its fleet contractor performs the modification itself. The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes Cthis agency to issue FMVSS applicable to new motor vehicles and new items of motor vehicle equipment. Section 108 (a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits the sale for purposes other than resale of any new motor vehicle or item of motor vehicle equipment unless it is in conformity with all applicable FMVSSs. After the first purchase of a vehicle in good faith for purposes other than resale, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in Section 108 (a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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.

This provision does not regulate in any manner how a vehicle owner can modify his or her vehicle. I note, however, that this agency encourages vehicle owners not to tamper with their vehicle's safety equipment if the modification would degrade the safety of the vehicle.

In addition, it is possible that the modifications you describe could be made by one of the named commercial entities without violating the "render inoperative" provision. The modification you describe affects two requirements of FMVSS No. 108, Lamps, reflective devices, and associated equipment. FMVSS No. 108 requires buses, including school buses, to have at least one backup light meeting the photometric and height requirements of SAE Standard J593c, February 1968. If the small white lights at the lowest level of the rear end of the bus comply with these requirements, the vehicle would continue to conform with this requirement.

Section S5.1.4 of FMVSS No. 108 requires school buses to have a system of either four red or four red and four amber signal lamps which conform to SAE Standard J887, July, 1964. The modification you describe would add an additional two red signal lamps to the existing eight light system. Section S5.1.3 of FMVSS No. 108 states that "(n)o additional lamp, reflective device or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard." It is our opinion that the addition of two red signal lamps would not violate this provision.

I hope this information is helpful. If you have further questions, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.

ID: nht93-4.6

DATE: May 21, 1993

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

TO: Duane Bartels -- Commercial Vehicle Inspector III, MN State Patrol

TITLE: None

ATTACHMT: Attached to letter dated 11-10-92 from Duane Bartels to NHTSA (OCC 8022)

TEXT: This responds to your letter requesting information on how the agency's regulations would affect a Minnesota resident wishing to change the seating in passenger vans by removing or modifying seats in the vans. The contemplated changes would reduce the seating in a 12 or 15 passenger van to a maximum of 10 persons. I will give you some background information concerning the relevant rules, and then proceed to answer your four questions.

The National Traffic and Motor Vehicle Safety Act ("Safety Act") authorizes the National Highway Traffic Safety Administration ("NHTSA") to issue safety standards applicable to new motor vehicles and items of motor vehicle equipment. NHTSA does not approve motor vehicles or equipment, however. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer of a new motor vehicle or items of equipment is responsible for certifying that its products meet all applicable safety standards.

If any party performs conversion operations (i.e., anything other than addition or removal of readily attachable components such as mirrors or tires, or minor finishing operations such as painting, see 49 CFR S567.6) on a certified vehicle before the first sale of the vehicle to a consumer, the party would be an "alterer" under 49 CFR S567.7, and would be required to affix its own label identifying itself and certifying that the altered vehicle continues to conform to all applicable Federal motor vehicle safety standards affected by the alteration.

If alterations are made to a vehicle after its first sale to a consumer, there are no certification requirements. However, under section 108(a)(2)(A) of the Safety Act, manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a used vehicle are prohibited from knowingly rendering inoperative any safety 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. The "render inoperative" provision does not apply to modifications vehicle owners make to their own vehicles.

Let me now proceed to answer each of your four questions:

1. BY DOING THIS ALTERING TO SEATS, IS HE DOING ENOUGH WORK TO THE VEHICLE TO QUALIFY UNDER 49 CFR 567.7?

If the modifications are carried out prior to a vehicle's first sale to a consumer, the person to whom you refer in your letter would be considered an alterer under 49 CFR S567.7. As discussed above, an alterer would be required to affix its own label identifying itself and certifying that the altered vehicle continues to conform to all applicable Federal motor vehicle safety standards affected by the alteration.

I note that, if alterations change the classification of a vehicle, the alterer must certify that the vehicle meets all Federal safety standards applicable to the new classification. As you noted in your letter, the contemplated alterations, resulting in a change in capacity from either 12 or 15 passengers to a maximum of 10 persons, would change the vehicle's classification from "bus" to "multipurpose passenger vehicle (MPV)," under 49 CFR Part 571.3. The alterer would therefore be required to certify that the altered vehicle meets all Federal safety standards applicable to MPV's. I note that different safety standards apply to MPV's and buses.

If the modifications are made to a used vehicle, the person to whom you refer in your letter would not be considered an alterer. However, if the person is a manufacturer, distributor, dealer or motor vehicle repair business, the person would have to take care not to violate to the "render inoperative" provision discussed above.

2. WILL THIS PERSON BECOME A MANUFACTURER AND IF SO, DOES HE NEED TO COMPLY WITH 49 CFR 566.5?

Alterers are considered manufacturers under the Safety Act. Since 49 CFR 566.5 sets forth requirements for "each manufacturer of motor vehicles," alterers must file the information required by that section. This information includes the name of the manufacturer, its address, and a brief description of the vehicle or vehicle equipment manufactured.

I note that NHTSA has issued several previous interpretation letters addressing the question of whether alterers must file under 49 CFR 566.5, and has taken positions which are difficult to reconcile. In at least one early letter (October 30, 1975 letter to Mr. James E. Harris), the agency indicated that some alterations might be so minor that the alterer might not be considered a manufacturer. In another letter (May 12, 1976, addressed to Mr. Mike Watson), the agency stated that a person who alters completed vehicles but "does not otherwise manufacture" vehicles or equipment is not required to file under section 566.5. In still other letters (see, e.g., April 4, 1973 letter to Mr. Warren Morris and July 5, 1985 letter to Houston N. Tuel, Jr., Esq.), NHTSA stated that alterations which change vehicle category are sufficient to require the person making the alterations to file under 566.5.

After reviewing 49 CFR 566.5 in light of these earlier letters, we have concluded that alterers (persons required to attach a label under 49 CFR Part 567.7) are subject to the filing requirements of section 566.5. First, there is nothing in Part 566 which indicates that alterers are excluded from the filing requirements. Second, application of the filing requirements to alterers is consistent with one of the stated purposes of Part 566, facilitating the regulation of manufacturers under the Safety Act. As indicated above, section 567.7 requires an alterer to affix a label identifying itself and certifying that the altered vehicle continues to conform to all applicable Federal motor vehicle safety standards affected by the alteration. If the agency believes that there may be a safety problem with work that has been performed by an alterer, the information submitted under Part 566 makes it easier to find and contact the alterer. I note that the burden on manufacturers (including alterers) complying with section 566.6 is minimal.

3. CAN HE PURCHASE A NEW VEHICLE, DO THE ALTERING AND RESELL THE VEHICLE OR

MUST AN OWNER BRING THE VEHICLE TO HIM AND HAVE THE ALTERING DONE?

Modifications can be carried out both on new vehicles (prior to first sale to a consumer) and on used vehicles. As discussed above, however, different requirements apply to these two situations.

4. CAN THIS ALTERING AND RECERTIFYING BE DONE ONLY TO A NEW VEHICLE OR CAN THIS BE DONE TO A USED VEHICLE?

As discussed above, while modifications can be carried out both on new vehicles and on used vehicles, the certification requirements only apply to persons making modifications to new vehicles. Thus, a "certification" of a used vehicle would not have any legal significance under the Safety Act.

I note that your letter states that one of the ways the person may modify seats is to do upholstery work to reduce the number of people that can sit in a seat.

However, modifications to seat upholstery will not result in reduced designated seating capacity unless the modified design is such that the extra area CANNOT be used for seating. I have enclosed two letters to Nissan, dated 8/15/79 and 10/1/79, which explain our position in greater detail.

I hope this information is helpful to you. If you have any further questions or need some additional information, please feel free to contact David Elias of my staff at this address or by telephone at (202) 366-2992.

ID: 005431rls

ID: nht91-3.23

DATE: April 16, 1991

FROM: Danny J. Pugh -- Engineering Manager, Special Service Vehicles, Utilimaster Corporation

TO: Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5-10-91 from Paul Jackson Rice to Danny J. Pugh (A37; Std. 207; Std. 208; Std. 210; Part 571.3)

TEXT:

We are updating our files on auxiliary seating such as temporary or folding jump seats. This will pertain to walk-in van type vehicles under and over 10,000 GVW.

Will jump seats be required to meet FMVSS 207, 208 and 210? Also, will they need Type II seat belts in the passenger outboard seating position and in side facing seats?

Your help with these questions will be appreciated.

ID: nht81-3.13

DATE: 09/03/81

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: National Glass Dealers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letters regarding Safety Standard No. 205, Glazing Materials. Please accept our apology for the lateness of our reply. You ask whether an installer of automotive safety glazing violates any of the regulations promulgated by the American National Standard Institute, Inc. (ANSI) or of this agency if the installer repairs damaged automotive glazing as part of his or her business.

The National Traffic and Motor Vehicle Safety Act, as amended in 1974 (the Act), authorizes the National Highway Traffic Safety Administration (NHTSA) to establish Federal Motor Vehicle Safety Standards for motor vehicles and motor vehicle equipment. Safety Standard No. 205 establishes performance requirements for automotive glazing. The standard incorporates by reference the American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways," Z26.1-1966. Glazing repair businesses, sellers of vehicles or automotive glazing, and manufacturers of glazing repair kits all have different responsibilities and liabilities regarding automotive glazing and Safety Standard No. 205 under the Act.

Section 108(a)(2)(A) of the Act prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering 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. (There is no prohibition against an individual modifying his or her own vehicle or equipment.) The National Highway Traffic Safety Administration does not consider fixing a damaged windshield to constitute rendering inoperative with respect to Standard No. 205 even if the windshield does not meet the requirements of the standard once repaired. This is because the agency considers the object or even which damaged the windshield in the first place to have rendered the windshield inoperative with respect to Standard No. 205. However, if the repair shop, in the course of fixing a damaged windshield that is installed in a vehicle renders another part of the vehicle or element of design inoperative with respect to another applicable Federal motor vehicle safety standard, then the repair shop violates section 108(a)(2)(A). It does not matter whether the vehicle is new or used (i.e., has been sold for purposes other than resale). There is no violation if the repair business reasonably believes that the vehicle or item of equipment will not be used (other than for testing or similar purposes in the course of repair) during the time such device or element of design is rendered inoperative. Section 109 of the Act imposes a civil penalty up to $ 1,000 for each violation of section 108(a)(2)(A). It is not likely that the process you describe would involve a rendering inoperative, but you should be aware of this section.

Sellers of repaired automotive glazing or vehicles equipped with repaired automotive glazing may violate section 108(a)(1)(A) of the Act. Section 108(a)(1)(A) provides that: no person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard. . .

(Note that section 108(b)(1) provides that section 108(a)(1)(A) does not apply once the motor vehicle or item of motor vehicle equipment is purchased in good faith for purposes other than resale. In other words, section 108(a)(1)(A) applies only to new vehicles or equipment, not to used vehicles or equipment.) Thus, if someone sells a new, but damaged, replacement windshield that does not comply with the requirements of Standard No. 205 once repaired, he or she is in violation of section 108(a)(1)(A), since he or she is selling an item of motor vehicle equipment that does not comply with all applicable safety standards. An automobile dealer who sells a new car whose windshield does not comply with Standard No. 205 also violates section 108(a)(1)(A). Again, section 109 imposes a civil penalty up to $ 1,000 for each violation of section 108(a)(1)(A).

The responsibilities of manufacturers of glazing repair kits or systems under the Act are found in sections 151 et seq. of the Act. Such manufacturers of motor vehicle equipment must notify purchasers about safety-related defects and remedy such defects free of charge. Section 109 also imposes a civil penalty of up to $ 1,000 upon any person who fails to provide notification of or remedy for a defect in motor vehicle equipment. It is not likely, however, that glazing repair kits would contain safety related defects. This section generally would apply to mechanical motor vehicle components.

Compliance with all applicable Federal motor vehicle safety standards will not automatically relieve a repair business or manufacturer of responsibility in a products liability suit. You will have to contact a private attorney for more information in this area, however.

We hope you find this information helpful. Please contact this office if you have further questions.

SINCERELY,

NATIONAL DEALERS

May 21, 1981

Raymond Peck Administrator National Highway Traffic Safety Administration U. S. Department of Transportation

Dear Mr. Peck:

I am writing on behalf of the 1,600 members of the National Glass Dealers Association, the nation's largest organization representing the automotive and architectural glass industry. For many years now, NGDA has addressed itself to the question of auto windshield glass repairs.

We have some new developments to tell you about, but first, a bit of background. It certainly comes as no surprise that minor breaks on laminated glass automobile windshields can be temporarily eliminated by displacing the air with as simple a substance as light oil. Used car salesmen have been known to attempt this for as long as there have been used car salesmen.

This repair concept made a great leap in technological sophistication when, several years ago, a company marketed a system for glass repair whereby a liquid plastic was deposited into minor windshield breaks by a vibrating type of machine. It was unsuccessful and eventually withdrawn from the market. Then came a "third generation" of repair that included elements common in both its predecessors. In 1975, this Association developed a report on all the known repair systems in existence then but, many of those firms have since disappeared.

The agonizing question still remains as to whether or not it is legal to repair damaged automobile windshields under various federal and state automobile safety laws and regulations.

Because glass dealers know the high standards set for windshields and because they know the integral part the windshield plays in the design and safety characteristics of an automobile, glass dealers have shied away from suggesting repair because it is not fully known how a repair affects the strength, integrity and vision of that original windshield and how that repaired glass might behave if called upon to support an auto's roof assembly in roll-over situation or worse.

Our association is also concerned at the fact that insurance people throughout the nation are waiving deductibles on comprehensive auto insurance and suggesting their insureds use repair instead of replacement. This could put that industry and ours in a most costly liable situation if an injury occured and the cause of the injury was alleged to be that the repaired glass did not maintain its strength, integrity and most important, we believe, undistorted vision.

One of our major concerns has been the advertising claims made by a major manufacturer of repair system. Their long-time claim has been that their product is, "Tested and meets the requirements of American National Standard Institute Safety Code (ANSI) Z26.1a-1969 (R-1973) for laminated glazing materials."

That is an invalid advertising claim that we feel has swayed the insurance industry into a false sense of security! In recent correspondence to ANSI, we pointed out that the independent testing laboratories' report on the repair system product noted the six different tests which were completed, but failed to note that the ANSI Code requires nine different tests -- leaving out three of the most important tests. Namely, an impact test, a deviation and distortion test and an abrasion resistance test. These three are surely vital if an effort is to be made to maintain the integrity of the windshield. We called on Mr. William H. Rockwell, Counsel for ANSI, and the Z26 Technical Committee of ANSI to make a determination as to whether or not these important advertising claims were, in fact, correct and applicable to the Z26 Code. We were quick to point out the authority and high regard an ANSI Code carries with it and we were certain ANSI would be interested in protecting its best interests.

We are pleased to report that both Mr. Rockwell and the Z26 Technical Committee have determined that the ANSI Code does not apply to repaired windshields -- only new windshields -- and ANSI moved quickly to request that the repair system cease reference to any ANSI Codes in its advertising as being an authority for use of its product. This is an important position taken by ANSI and we want to share this information with you. Glass dealers across the nation will be hearing that these advertising claims are invalid -- as determined by ANSI.

However, we now begin to see another advertising claim (as shown on the second page of the enclosed flyer) that a particular windshield repair system meets the ANSI codes". . . as observed by the United States Department of Transportation." Our agonizing question still remains! Can an installer of auto safety glass provide a glass repair service and not be held in violation of any ANSI or National Highway Traffic Safety Administration or Department of Transportation rules and/or regulations?

We are writing on behalf of our members who have a vital interest in expanding their market penetration, but only once assured that there would be no consequent liability for their actions. Therefore, we respectfully request information as to the extent of your departments observation of the NOVUS repair system, as indicated in the enclosed materials, which lead to your acceptance of such a system of glass repair.

If additional materials are needed, please feel free to contact our national headquarters office. We will appreciate your assistance in this matter and will look forward to your prompt reply.

Robert W. Stanley Executive Vice President

ENCLS.

cc: GEORGE FLEET -- NGDA PRES.

american national standards institute, inc.

April 10, 1981

Gerald E. Keinath President NOVUS Inc.

Dear Mr. Keinath:

Enclosed you will find a copy of my November 17, 1980 letter to NOVUS and your reply of December 16, 1980. Since that time we have been checking this question out and find two things:

1) ANSI Z26.1 covers only new windshields, not repaired glass. (See SAE letter of March 11, 1980 attached.)

2) We received a laboratory report analyzing the Patzig report you sent me. This is what they had to say:

"We have reviewed this report. Only six selected tests from the nine tests required by the Code were carried out. The following tests were not run: Test No. 9 Impact, Dart, 30 Feet, Test No.15 - Deviation and Distortion, and Test No. 18 - Abrasion Resistance. Most significant of these omissions were the optical deviation and distortion tests and the abrasion test. The Patzig Report states that 30 specimens illustrating repaired breaks of various size and shapes were submitted."

In view of this we are writing to ask you to refrain from using any reference to our Z26.1 standard in your advertising for repaired glass.

William H. Rockwell Resident Counsel

cc: PATRICIA COUHIG - SAE; ROBERT W. STANLEY

Society of Automotive Engineers, Inc.

March 11, 1981

Robert W. Stanley National Glass Dealers Association

Dear Mr. Stanley:

The Technical Committee to ANSI Z26 has now had the opportunity to review in detail the matter of whether ANSI Z26.1-1977 addresses repaired windshields.

It is their opinion that the Code address new windshields, not repaired glass. This opinion is supported by the wording in the Code in paragraph 4.1, which states:

"Tests shall be applied to specimens only when in the condition as shipped by the manufacturer, except that any protective masking material shall be removed prior to making the tests."

We regret the delay in having this response made to you, however, we hope it does answer your inquiry.

Patricia Couhig for ANSI Z26 Technical Committee

cc: R. MORRISON; W. H. ROCKWELL

An exciting new business opportunity requiring a very modest investment. (Illegible Text)

(Graphics omitted)

Call and talk to a Novus Business Consultant who will explain the Novus METHODman(TM) II system and ongoing supports offered by the company, or write (include your phone number) to

NOVUS

International Headquarters NOVUS, Inc., 5301 Edina Industrial Blvd. Minneapolis, MN 55435 (612) 831-2434

REPAIR STONE DAMAGED WINDSHIELDS (Illegible Text) (Graphics omitted)

ID: nht89-2.47

TYPE: INTERPRETATION-NHTSA

DATE: JULY 27, 1989

FROM: LARRY S. SNOWHITE -- MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO

TO: STEPHEN P. WOOD, ESQ. -- ACTING CHIEF COUNSEL, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED JANUARY 25, 1990 TO LARRY S. SNOWHITE, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, FROM STEPHEN P. WOOD, NHTSA; REDBOOK A35; VSA 1397 (A)(2)(A); STD. 108

TEXT: On behalf of our clients, ATAT Technology Ltd. ("ATAT") and CTS Corporation, we respectfully request that you determine that the sale into the aftermarket as well as aftermarket installation of the Advanced Brake Light Device ("ABLD") manufactured by ATAT (or of any other device performing as does the ABLD) would not violate the statutes administered by, or regulations of, the National Highway Traffic Safety Administration.

Specifically, we are requesting this determination for a device, the ABLD or a similar device demonstrating comparable performance, that consists of a sensor attached to the accelerator pedal that senses the rate at which the foot releases the acceler ator pedal. This signal is transmitted to a processor unit, which determines whether the brake lights should be turned on, and the duration of the illumination until the brake is applied. The ABLD is set so that the brake light will go off unless the b rake is applied within one second of the ABLD's activation, which based on experimentation and observation provides sufficient time for the brake pedal activation of the stop lights while avoiding misleading signals (if NHTSA considers that a different i nterval is consistent with applicable law and regulations, ATAT is prepared to modify the interval to meet an alternative NHTSA performance standard.)

It is our belief that the ABLD, and any similar device, holds out the promise of avoiding significant numbers of rear-end accidents and of reducing the seriousness of rear-end accidents that do occur. As the ABLD does not compromise,

render inoperative, in whole or in part, or impair the effectiveness of the mandated brake light system, we believe that on neither legal nor public policy grounds should NHTSA object to aftermarket sales of the ABLD.

This question was previously considered in a Memorandum dated March 7, 1988 addressed by Erika Jones to the Associate Administrator for Research and Development. In our view, that Memorandum was based on inadequate information concerning the mandated brake and brake light systems, the ABLD's performance and ABLD's potential contribution to safety -- inadequacies for which ATAT was responsible and which it now seeks to correct. In the intervening months, additional studies have been conducted and AT AT has marshaled relevant research materials. This new information is presented in the enclosed submissions.

The March Memorandum expressed concern that installation of the ABLD could create a noncompliance with Standard 108 and thereby presumptively run afoul of the anti-tampering provisions of the Motor Vehicle Safety Act, 15 U.S.C. 1397. In this regard, w e understand that the threshold question is, does the ABLD render inoperative, in whole or in part, a device or element of design installed in compliance with Standard 108. A related determination is whether, under S4.1.3, it "impairs the effectiveness of lighting equipment required" by Standard 108.

This is a factual determination. And we believe that as a matter of fact the ABLD does not render the brake light system inoperative or impair its effectiveness.

First, the ABLD does not prevent the brake light system (the stoplamp and the CHMSL) from being activated and operating when the brake is applied. The ABLD is consistent with the operation of the brake light system, and arguably enhances it. The ABL D clearly and unambiguously indicates "the intention of the operator of a vehicle to stop or diminish speed by braking." SAE Standard J586d,2.1. Stop Lamps. The brake light is illuminated if the driver releases the accelerator at a rate greater than a predetermined minimum -- a minimum which reflects a very high probability that the release will be followed by an "emergency" brake application. If the brake is applied within one second, the brake light remains illuminated. Certainly this is consisten t with the definition of a Stop Lamp and with the operation of the brake light system.

There will be circumstances in which the brake will not be engaged after the ABLD is activated. In this case, the brake light will remain illuminated only for one second. As the enclosed material documents, this is not a phenomenon unique to, or agg ravated by, the ABLD. Illuminations of the brake lights for one second or less occur frequently during

normal driving without the ABLD. As is described in the enclosed submissions, in everyday driving it is not uncommon for the brake lights to be illuminated briefly even though the service brakes are not activated. The performance of the ABLD adds margi nally to the total number of illuminations of the brake lights for less than one second. Thus, ABLD-caused short-duration illuminations do not convey an intent or signal that is inconsistent or contradictory of the signal sent by the standard brake ligh t system. And they do signal an at least momentary "intention of the operator to stop or diminish speed by braking"

Activation of the ABLD does illuminate the stoplamps by means other than the application of the service brakes. While S4.5.4 prohibits the CHMSL being activated by means other than the application of the service brake, there is no comparable prohibit ion on the stoplamps themselves being activated by means other than the application of the service brakes. The ABLD would activate the stoplamp and CHMSL simultaneously. And it is our understanding that the CHMSL provision is an inadvertent hold-over f rom a rule, S4.5.11(b), that allowed the CHMSL to be activated by the hazard warning system for passenger cars manufactured on or after August 1, 1984 until September 1, 1986. Accordingly, while the installation of the ABLD as OEM technically would be i nconsistent with a literal reading of S4.5.4, this should not be considered an "impairment" such as to bar aftermarket sales and installation of the ABLD.

As previously noted, both the trigger point for the activation of the ABLD and the interval during which the ABLD illuminates the brake lights are subject to adjustment. The trigger and interval chosen reflect ATAT's studied judgment as to what will succeed in order to send a signal in those cases in which a signal is appropriate and minimize the incidence of misleading signals. Part of the basis for this judgment is set out in the attached submissions.

ATAT would appreciate an opportunity to meet with appropriate NHTSA staff in order to discuss this request so as to assure that you are in a position to respond to the request based on the fullest available information. As you will immediately see, t he enclosed submissions are the result of considerable work and ATAT would also welcome the opportunity to respond to questions about them.

As you know, ATAT is an Israeli company. This creates special logistical difficulties in communicating with NHTSA. A representative of ATAT will be in the United States on

August 1-4. We believe that it would be in the mutual interest of ATAT and NHTSA to meet during these dates.

Thank you for your consideration.

Enclosure