ID: nht90-4.9

TYPE: Interpretation-NHTSA

DATE: September 17, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Gerald F. Vinci -- Sun Refining and Marketing Company

TITLE: None

ATTACHMT: Attached to letter dated 8-17-79 from F. Berndt (Signature by S.P. Wood); Also attached to letter dated 8-14-90 from G.F. Vinci to P.J. Rice (OCC 5121)

TEXT:

This responds to your August 14, 1990 letter and telephone calls about your plans to convert the fuel system on a vehicle from gasoline to propane. You said your company ("Sun Refining") would like to purchase a new vehicle and convert it for purposes o f your own research, and will not be reselling the vehicle. You ask about the requirements that would apply to the conversion.

We do not have any requirements that would apply to the conversion if the conversion is made by Sun itself. The National Traffic and Motor Vehicle Safety Act and NHTSA's regulations generally do not apply to a vehicle after the vehicle is sold to a cons umer (e.g., Sun) for purposes other than resale. Although the Act prohibits certain entities from tampering with or removing federally required safety features, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle .

However, in the event you have the conversion done by a party other than your company, Federal law may apply. Section 108(a)(2)(A) of the Safety Act prohibits vehicle manufacturers, distributors, dealers and repair businesses from knowingly rendering in operative federally required safety features when modifying a vehicle. I have enclosed an information sheet that discusses the application of S108(a)(2)(A) to fuel system conversions.

NHTSA wishes to learn more about the safety of propane fuel systems and is considering a public announcement seeking information on various safety issues. We would, therefore, be interested in the results of your research when they're completed.

Even though your conversion would not be covered by the FMVSS's, we suggest you consult State law to see if the State has requirements for propane vehicles. In addition, other Federal agencies may have regulations for your vehicle. If your vehicle woul d be a commercial vehicle, the regulations of the Federal Highway Administration (FHWA) may apply. I have forwarded a copy of your letter to FHWA for their reply. You might also contact the Environmental Protection Agency (EPA) for information about the conversion. EPA's general telephone number is (202) 382-2090.

I hope this information is helpful. Please contact us if you have further questions.

ID: nht90-4.90

TYPE: Interpretation-NHTSA

DATE: December 21, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Satoshi Nishibori -- Vice President, Industry-Government Affairs, Nissan Research and Development

TITLE: None

ATTACHMT: Attached to letter dated 4-24-90 from Satoshi Nishibori to Stephen P. Wood (OCC 4709)

TEXT:

This responds to your letter seeking to confirm your understanding of the scope and application of the "captive import definition set forth at 49 CFR 533.4(b)(2), and used in specifying light truck CAFE standards.

NHTSA's regulations define a "captive import" as a light truck which is "not domestically manufactured but which is imported in the 1980 model year or thereafter by a manufacturer whose principal place of business is in the United States. The agency ado pted this definition beginning with the 1980 model year in order to prevent the standards from encouraging the increased importation of these vehicles and exportation of domestic jobs. See 43 FR 11996, March 23, 1978.

Your letter explains that you do not believe that the light trucks manufactured in the U.S. by Nissan's U.S. manufacturing subsidiary (NMM, which is jointly-owned by the parent Nissan Motor Co. Ltd. (NML) in Japan and its wholly-owned U.S. importation an d distribution subsidiary (NMC)), should be classified as captive imports. Your letter also states that light trucks imported by NMC should not be classified as captive imports. As explained below, I have concluded that neither the light trucks imported by your U.S. subsidiary, nor trucks manufactured by your U.S. manufacturing operation should be considered "captive imports."

Section 501(8) of the Motor Vehicle Information and Cost Savings Act (the Act) defines the term "manufacturer" as meaning "any person engaged in the business of manufacturing automobiles. . . ." The term "manufacture" is then defined in section 501(9) a s meaning to "produce or assemble in the customs territory of the United States, or to import."

Under these definitions, which are also used in Part 533, NMC is a manufacturer of light trucks imported for the parent company. Since NMC's principal place of business is in the U.S., one might initially conclude that all of Nissan's imported light tru cks should be classified as captive imports. However, that is not a necessary conclusion since there may be more than one manufacturer of these vehicles.

NHTSA has concluded in the past that a second person may be regarded as a manufacturer of a vehicle manufactured by another person if that second person has a sufficient role in the manufacturing process that it can be deemed the "sponsor" of the vehicle . See, for example, the enclosed February 19, 1987 interpretation to a confidential addressee.

For Nissan's imported light trucks, the act of importation is the key manufacturing activity under the statute. While NMC does the actual importing, NML is responsible for the creation and production of the vehicles imported to the U.S. It designs mode ls specifically for the U.S. market, and created NMC for the purpose of importing and marketing these vehicles. NML can be seen as "sponsoring" the importation of Nissan light trucks. Moreover, applying basic principles of the law of agency, NML, as sp onsor, may be considered the principal. It is therefore our opinion that NML and NMC are both importers of the Nissan vehicles being brought into the U.S., and hence both are manufacturers under the statute. This situation is obviously distinguished fr om circumstances where the importer is not connected with the foreign manufacturer, e.g., so called grey market importers.

NHTSA believes it is appropriate, in determining whether the vehicles are "captive imports" to look at the totality of the circumstances surrounding the production, importation and marketing of the vehicles. In this case, NML controls all aspects of the Nissan light trucks imported into the U.S. Further, NML exercises complete control over NMC, and created NMC for the purpose of importing and marketing NML's products in the U.S. Indeed, NMC exists primarily to serve NML as a conduit into the U.S. mark et.

I note that this relationship is clearly distinguished from the circumstances of the typical captive import. In lieu of producing certain vehicles in this country, a domestic manufacturer imports and markets in this country vehicles (captive imports) su pplied by a foreign manufacturer with which it has a special relationship. In such a case, the domestic manufacturer is not under control of the foreign company. Moreover, the domestic manufacturer does not serve primarily as a conduit to the U.S. mark et for the imported vehicles.

Since NML has its principal place of business in Japan, and exercises complete control over NMC, I conclude that vehicles manufactured by NML and imported into the U.S. by NMC are not captive imports. Moreover, since almost all foreign manufacturers uti lize U.S. subsidiaries to import vehicles into the U.S., any other conclusion would have the effect of making virtually all imports "captive imports," a result which would clearly be inconsistent with the agency's intent in establishing the captive impor t category.

I also agree with the statement in your letter that light trucks manufactured in the U.S. by NMM are not captive imports. While we understand that these vehicles are not "domestically manufactured" as that term is defined in the statute, neither are the y imported. The term "import" is defined in section 502(10) of the Act as meaning "to import into the customs territory of the United States." Since these vehicles are not imported, it is impossible for them to be considered captive imports.

Your letter also enclosed a copy of a letter you sent to EPA, requesting that agency's interpretation of portions of EPA'S fuel economy calculation regulations at 40 CFR Part 600. You sought clarification from EPA on the apparent inconsistency between E PA's regulations, which provide separate treatment for "domestically

produced" and "not domestically produced" light trucks, and NHTSA'S classification regulations, which distinguish only between "captive imports" and "others." You requested this agency's comments on the issues raised in the letter to EPA.

I am not in a position to comment on EPA's regulations, or on that agency's interpretation of its regulations. I will confirm, however, that NHTSA intended for different procedures to be applied to the determination of CAFE for light trucks than those f or passenger cars. The primary distinction is that under the statute, passenger cars are divided into "domestically manufactured" and "not domestically manufactured" fleets. The statute contains no comparable distinction for light trucks. However, unde r NHTSA's regulations, light trucks are divided into captive imports and "others" which encompasses all light trucks which are not captive imports. This issue is discussed in some detail in the final rule establishing the captive import definition. See , 43 FR 11995, 11998-9, March 23, 1978.

I hope you have found this information helpful. Please do not hesitate to contact this office if you have any further questions.

ID: nht90-4.91

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Fred Ciampi -- Fred's Welding Service

TITLE: None

ATTACHMT: Attached to letter dated 10-17-90 from F. Ciampi to Office of the Chief Counsel, NHTSA (OCC 5342)

TEXT:

This responds to your letter requesting information concerning Federal requirements governing the manufacture of utility trailers. Your letter indicated that you plan to manufacture trailers.

First, please be aware that the National Highway Traffic Safety Administration (NHTSA) has authority to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. For purposes of this authority, trailers are co nsidered motor vehicles. NHTSA does not approve motor vehicles or equipment, nor does the agency endorse any commercial products. Instead, the National Traffic and Motor Vehicle Safety Act establishes a certification process under which each manufacture r must certify that its product meets agency safety standards, or other applicable standards. Periodically, NHTSA tests whether vehicles or equipment comply with these standards, and may investigate alleged safety-related product defects.

The following Federal safety standards apply to trailers: Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, Safety Standard No. 115, Vehicle identification Number--Basic Requirements, and Safety Standard No. 119, New Pneumatic Tires for Vehicles Other Than Passenger Cars. The content requirements for the vehicle identification number are found at 49 CFR Part 565. In addition, depending on the type of braking system used, trailers must meet Safety Standard No. 106, Brake Hos es, Safety Standard No. 116, Motor Vehicle Brake Fluids, and Safety Standard No. 121, Air Brake Systems. All of these standards are found in 49 CFR Part 571.

In addition, as a manufacturer of motor vehicles, you would be required to submit identification information to this agency in accordance with 49 CFR Part 566, Manufacturer Identification. You would also be required to certify that each trailer complies with all applicable Federal safety standards. This certification procedure is set out in 49 CFR Part 567.

You may find a copy of 49 CFR at a Federal Depository Library in your State. If you so choose, you may purchase a copy of Title 49 from the United States Government Printing Office (GPO), Washington, D.C. 20402, (202) 783-3238. With respect to laws gov erning trailer manufacture, the principal statute is the National Traffic and Motor Vehicle Safety Act. You may obtain a copy of this Act from GPO. You may wish to note especially S151 of the Act, which requires a manufacturer of a motor vehicle or moto r vehicle equipment to conduct notice and recall campaigns if you or this agency find that your product has a safety-related defect.

There may be State regulations that apply to trailer manufacture and use. In many states, a person cannot register a new vehicle unless he or she has a statement or certificate of origin. I understand that the Recreation Vehicle Industry Association wil l supply a small quantity of form statements or certificates upon request. You may contact that organization by writing them at 1896 Preston White Drive, Reston, VA 22090; or calling (800) 336-0154. You may wish to contact the local Department of Trans portation or Motor Vehicle Administration in the states for which you have an interest for further information on state requirements.

I hope you find this information helpful. Please do not hesitate to contact this office at (202) 366-2992 if you have specific questions.

ID: nht90-4.92

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Gordon Bonvallet

TITLE: None

ATTACHMT: Attached to letter dated 10-5-90 from Gordon Bonvallet to Paul Jackson Rice (OCC 5282)

TEXT:

This is in reply to your letter of October 5, 1990, with respect to a prospective headlighting system. It is contemplated that the lower beam on the system would be furnished by a gaseous discharge headlamp, an "integral beam" headlamp under Standard No . 108. The upper beam would be furnished by a replaceable bulb headlamp using an HB3 light source.

You comment that a combination system such as this is not specifically addressed by Standard No. 108, and you ask for confirmation of your opinion that the photometric requirements of Figure 15 would apply to both the upper and lower beam headlamps.

At the present time, such a hybrid headlighting system is impermissible under Standard No. 108. The standard establishes separate requirements for integral beam headlighting systems (S7.4), and for replaceable bulb headlighting systems (S7.5). Though " integral beam headlighting system" is not specifically defined by Standard No. 108, such a system would appear to be one that consists of integral beam headlamps. Standard No. 108 does define "integral beam headlamp", and that definition specifically ex cludes "a replaceable bulb headlamp" such as one containing an HB3 light source. Similarly, a "replaceable bulb headlamp system" is one that consists solely of headlamps containing HB1, HB2, HB3, HB4, or HB5 light sources.

It is true that Figure 15 is one of three lower beam photometric options that apply to an integral beam headlamp, such as one producing illumination through gaseous discharge. However, under the language of the standard, Figure 15 applies when the lamp is used in a four headlamp integral beam headlighting system (S7.4(a)(1)(i)). It is also true that the upper beam photometrics of Figure 15 apply to an HB3 replaceable bulb headlamp (S7.5(e)(3)(ii)), but only when used in a four lamp headlighting system in which each headlamp contains a single replaceable light source.

As you know, the policy of this agency for the last decade has been to reduce design restrictions on headlighting systems. Removal of the implicit prohibition against hybrid headlighting systems would be a further step in this direction. If your client is seriously considering such a system, it may submit a petition for rulemaking at the appropriate time.

ID: nht90-4.93

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Mitch L. Williams -- President, Hella Inc.

TITLE: None

ATTACHMT: Attached to letter dated 11-1-90 from Mitch L. Williams to Richard Van Iderstine (OCC 5441); Also attached to letter dated 11-8-90 from Mitch L. Williams to Richard Van Iderstine

TEXT:

This is in reply to your letters of November 1 and 8 to Richard Van Iderstine of this agency.

In your letter of November 1 you ask "How would NHTSA view the addition of a rear spoiler with integrated third rear brake light to a vehicle already originally equipped with a third rear brake light?"

There are two relevant provisions of Standard No. 108 that deal with your question. The first is relevant if installation of the spoiler prevents the original lamp from meeting the photometric or visibility requirements of Standard No. 108. If this occ urs, compliance may be maintained by installing another center high-mounted lamp that meets all requirements of Standard No. 108. See S5.3.1.1. Presumably, the lamp in the spoiler is designed, or could be designed, to comply to all applicable requireme nts.

A further question is whether two center high-mounted stop lamps are permissible. An auxiliary lamp is prohibited by S5.1.3 if it impairs the effectiveness of the lighting equipment required by Standard No. 108. One example of impairment is when the au xiliary lamp creates confusion as to the function of the original lamp. The motoring public is used to seeing only one center lamp in operation. Although we cannot reach a definitive conclusion that an auxiliary center stop lamp would impair the effect iveness of the original center stop lamp, it would probably be prudent to ensure that there is only one center stop lamp in operation. Thus, if the spoiler lamp complies with Standard No. 108, the original lamp may be disconnected. If the spoiler lamp d oes not comply with Standard No. 108 and the original lamp remains in compliance with Standard No. 108, the question of impairment arises. On balance, it would appear unlikely that impairment would result from this configuration.

In your letter of November 8 you ask several questions with respect to the installation of center high-mounted stop lamps on pickup trucks. On May 31, 1990, NHTSA proposed that the lamp be installed on pickup trucks and some other types of vehicles as w ell. We anticipate publishing a final rule on this issue in the Federal Register in the near future. The preamble to the rule will address your questions on location of the lamp.

ID: nht90-4.94

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Herr T. Spingler

TITLE: None

TEXT:

This is in reply to your FAX of July 19, 1990, to Richard Van Iderstine of this agency asking for confirmation of an oral interpretation provided you by Jere Medlin, Office of Rulemaking, with respect to replaceable bulb headlamps.

Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, defines (section S3) a replaceable bulb headlamp as "a headlamp comprising a bonded lens and reflector assembly and one or two standardized replaceable light sour ces." In Europe you fix the lens to the reflector assembly with a rubber seal and clips. For the U.S. market you propose to add "silicone-glue at four places between lens and housing to prevent removal of the lens." Mr. Medlin informed you that this w ould be a "bonded lens and reflector assembly."

The standard does not define "bonded", but the intent of the definition is that, once the lens is joined to the reflector assembly, it shall not be separable. Any method of adhesion that accomplishes this would be a sufficient bond for purposes of the d efinition. If the application of silicone glue at four places between the lens and the reflector assembly is sufficient to prevent manual separation of the lens from the assembly, then it would be a sufficient bond.

I hope that this answers your question.

ID: nht90-4.95

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Stanley S. Zinner -- Greene & Zinner, P.C.

TITLE: Re FMVSS No. 123

ATTACHMT: Attached to letter dated 12-4-90 to Paul Jackson Rice from Stanley S. Zinner (OCC 5479); Also attached to letter dated 2-16-82 to Brian Gill from Frank Berndt (Std. 123); Also attached to letter dated 10-26-73 to Brian Gill from Richard B. Dyso n

TEXT:

This is in reply to your FAX letter of December 4, 1990, requesting an interpretation of section S5.2.4 of 49 CFR 571.123 Motor Vehicle Safety Standard No. 123 Motorcycle Controls and Displays. Specifically, you wish an opinion "as to the meaning, purpo se, and intent" of that section.

Section S5.2.4 Stands states that "A stand shall fold rearward and upward if it contacts the ground when the motorcycle is moving forward." As Taylor Vinson of this office explained to you, this requirement was one of the original provisions in Standard No. 123 when it became effective in 1974. However, unlike many other requirements in the standard, it was both proposed and adopted without any discussion of its meaning, purpose, and intent in the preambles to both these rulemaking actions other than the bare remark that the notices contained a requirement for stands. Furthermore, in the 16 years that the requirement has been in effect, the agency does not appear to have issued a single legal opinion relating to section S5.2.4.

However, the agency has issued two interpretations of section S5.2.5 which we believe are relevant to an understanding of S5.2.4. In pertinent part, S5.2.5 Footrests states that "Each footrest for a passenger other than an operator shall fold rearward a nd upward when not in use." In a letter of February 16, 1982, to American Honda Motor Co., Inc., with respect to a proposed footboard design, the then chief counsel commented that "We consider that the purpose of S5.2.5 is to prevent accidents caused by rigid footrests contacting the ground in a banking turn." In a letter of October 26, 1973, also to American Honda, the then Assistant Chief Counsel commented that S5.2.5 did not require automatic folding but only the direction in which the footrests sh all retract "so that if they are inadvertently left down when not in use they will fold rearward and upward should they hit an obstacle while the motorcycle is travelling forward." I enclose a copy of each of these letters for your information.

The meaning of S5.2.4 is, we believe, clear and unambiguous: if a stand is left down, it shall fold rearward and upward if it contacts the ground (which includes the roadway) while the motorcycle is moving forward. Because both sections S5.2.4 and S5.2.5 require motorcycle equipment "to fold rearward and upward", we further believe that the purpose and intent of both sections are the same, and that S5.2.4 could be substituted for S5.2.5 in the sentences of the two letters quoted in the preceding paragra ph.

I hope that this is responsive to your request.

ID: nht90-4.96

TYPE: Interpretation-NHTSA

DATE: December 26, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Captain J.P. Henries -- Safety Officer, Virginia State Police

TITLE: None

ATTACHMT: Attached to letter dated 11-6-90 from J.P. Henries to P.J. Rice (OCC 5411)

TEXT:

This responds to your recent letter seeking further information about the Federal motor vehicle safety standards, and the extent to which those standards require safety belts to include a lap belt portion. More specifically, you stated that Virginia's S tate Inspection Program currently requires any 1963 and subsequent model years vehicles designed and licensed primarily for passenger use to be equipped with lap belts or lap/shoulder belts for at least two front seating positions. However, my September 10, 1990 letter to Mr. Rembert Ryals explained that front seating positions equipped with automatic safety belts that are certified as complying with our 30 mph frontal crash protection requirements are not required to include a lap belt either as a par t of the automatic belt system or as a separate manual lap belt. To aid in the efficient administration of Virginia's State Inspection Program, you asked how Virginia safety inspectors could readily identify those vehicles that were not originally requi red to be equipped with lap belts. I am pleased to have this opportunity to provide you with the following information.

Standard No. 208, Occupant Crash Protection (49 CFR S571.208), requires every vehicle other than a bus to have, as original equipment, a safety belt installed at every "designated seating position." Two different types of safety belts have been installe d pursuant to this requirement. The first type of safety belt is generally called a "manual" safety belt. With manual safety belts, the occupant of the seat must take some action to fasten the belt to be protected in a crash. Manual belts are required t o have a lap belt portion, that is, manual safety belts must be either lap-only or lap/shoulder safety belts.

The second and newer type of safety belt is called an "automatic" safety belt. An automatic safety belt positions itself to protect an occupant of the seat without any separate deliberate actions by the occupant. The occupant protection afforded by aut omatic safety belts is evaluated in a 30 mph crash test of the vehicle using test dummies as surrogates for human occupants. Because automatic safety belts must demonstrate their effectiveness in a crash test, they are not subject to all of the requirem ents that apply to manual safety belts. One of the manual belt requirements that does not apply to automatic belts is the requirement that the safety belt include a lap belt portion. Hence, as noted in my letter to Mr. Ryals, automatic belts are not re quired to include a lap belt.

It is easy to distinguish automatic safety belts from manual safety belts, by looking at where the upper end of the shoulder belt is anchored to the vehicle. Manual belts have the upper end of the shoulder belt anchored to the vehicle structure, such as the B-pillars. Again, since most current

safety belts are manual belts, this is the safety belt anchorage location with which you and the members of your department are most familiar. Because automatic belts must position themselves around occupants automatically, they must be anchored in a dif ferent way. Nonmotorized automatic belts are anchored to the door itself, while motorized automatic belts run along a track over the top of the doorframe. These anchorage locations enable either design of the automatic belt to properly position itself around a seat's occupant when the person gets into the vehicle and closes the door, and enable the automatic belt to move out of the way to allow the person to get out of the vehicle when the door is opened.

Although automatic belts are not required to include a lap belt, nearly all manufacturers have voluntarily chosen to provide lap belts for seating positions equipped with automatic belts, either as part of the automatic belt or as a separate manual belt. This is not always the case, however, as Volkswagen, for instance, has not voluntarily chosen to provide a lap belt with some of its automatic belts. Further, since there is no requirement to provide those lap belts, manufacturers may not choose to co ntinue providing lap belts in the future for seating positions equipped with automatic belts.

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

ID: nht90-4.97

TYPE: Interpretation-NHTSA

DATE: December 26, 1990

FROM: Walter E. Gundaker -- Acting Director, Center for Devices and Radiological Health, Department of Health & Human Services

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 2-19-91 from Paul Jackson Rice to Walter E. Gundaker (A37; VSA 102(4); VSA 108(a)(2))

TEXT:

On November 23, 1983 the Food and Drug Administration published in the Federal Register a Final Rule classifying the mechanical automobile hand and foot driving control as a class II medical device. The product is intended to enable persons who have lim ited use of their arms or legs to drive an automobile. The device allows hand operation of the gas, brake, and clutch pedals or foot operation of the steering and gear shift.

Recently we have found that more sophisticated versions of the controls are being developed. These products, which incorporate a joy stick, a microprocessor and servo controls, permit individuals with very limited body control to drive a motor vehicle. Applications to FDA for approval to market these controls have raised questions about vehicle safety which we feel are more appropriately addressed by the National Highway Traffic Safety Administration (NHTSA).

In view of the nature of these products, we would like to revoke the classification of the mechanical hand and foot driving control, and not actively regulate the device. Before we do this, however, we need assurances that these driving controls for han dicapped persons do fall in the jurisdiction of NHTSA and that significant complaints of malfunction would be investigated by NHTSA. Could you give us such assurances?

Thank you for your consideration of this subject. If you or your staff need additional background or information, please contact Mr. Leighton Hansel in our Office of Compliance & Surveillance at (301) 427-1144.

ID: nht90-4.98

TYPE: Interpretation-NHTSA

DATE: December 26, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Arthur H. Bryant, Esq. -- Executive Director, Trial Lawyers for Public Justice

TITLE: Neilson v. Porsche, et al., D. Idaho, Civ. No. 87-1121

TEXT:

This is in response to your letter to Kenneth Weinstein, the Assistant Chief Counsel for Litigation of the National Highway Traffic Safety Administration ("NHTSA"), regarding the above-referenced case, in which the District Court ruled that the plaintiff 's claims are preempted by Federal law. You have requested that the United States file an amicus curiae brief with the Ninth Circuit in support of the plaintiff.

Although this agency strongly disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief in this appeal. A discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, it is the position of the United States, as expressed in amicus briefs filed in Ritt v. General Motors, No. 88-1822 (7th Cir.), and Wood v. General Motors, No. 89-46 (U.S. S.Ct.), that under certain circumstances, claims seeking to hold a motor vehicle liable in tort for its failure to install airbags in a vehicle are preempted by the National Traffic and Motor Vehicle Safety Act of 1966 ("Act"), 15 U.S.C. S 1381 et seq., and Federal Motor Vehicle Safety Standard ("FMVSS") No. 208, 49 CFR S 571.208, issued at 49 Fed. Reg. 28962 (July 17, 1984). However, in both of those briefs, the United States emphasized that, as a general matter, the fact that a motor vehicle complies with applicable federal safety standards neither preempts state law tort actions nor provides a complete defense to such claims.

Those briefs noted that NHTSA had, for many years, interpreted the Act to allow such claims to proceed, and referred to a January 5, 1981 letter from Frank Berndt, NHTSA's Chief Counsel, to Daniel L. Thistle. As that letter noted:

Section 108(c) (15 U.S.C. 1397(c)) of the Act provides that compliance with a motor vehicle safety standard "does not exempt any person from liability under common law." The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess (1966)) on se ction 108(c) states that, "It is intended, and this subsection specifically establishes, that compliance with safety standards is not to be a defense or otherwise to affect the rights of parties under common law, particularly those relating to warranty, contract, and tort liability."

This principle has been upheld consistently by the courts, as reflected in the cases cited in the plaintiff's brief in opposition to Porsche's motion for summary judgment in this case. (Of course, NHTSA takes no position on the merits of this case; i.e. , whether Porsche should be held liable for not making the seat backs in the vehicle in question stronger.)

Thus, as noted above, in our view the District Court's opinion misstates the law on this issue. In relying upon cases in which courts have found claims involving airbags to be preempted, the court ignored the vital distiction between claims challenging a manufacturer's failure to install airbags rather than other forms of occupant protection that were specifically authorized by FMVSS No. 208, and claims such as the one at issue here, in which it is alleged that the manufacturer should have provided a h igher level of protection than that required under a NHTSA safety standard. However, to our knowledge, this is the first case in which a court has misapplied the airbag precedents to reverse a consistent body of law that permits claims such as this to p roceed. In keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case, particularly since the plaintiff will be able to provide the Ninth Circuit with our views on the issue. In the unlikely event that this erroneous view of the extent of Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.