ID: GF004408

Mr. Michael Kastner
Director of Government Relations
National Truck Equipment Association
1300 19^th Street, NW, 5^th Floor
Washington, DC 20036-1609

Dear Mr. Kastner:

This is in response to your letter of June 22, 2004, in which you requested interpretation of certain vehicle labeling requirements in S4.3 of the Federal Motor Vehicle Safety Standard (FMVSS) No. 110, Tire Selection and Rims, as amended by a final rule that responded to petitions for reconsideration, published on June 3, 2004 (69 FR 31306).

S4.3 requires that each vehicle subject to the standard contain either a single vehicle placard with certain tire information, or a vehicle placard and a supplementary tire inflation pressure label, affixed to the drivers side B-pillar. S4.3(a) requires that each placard show vehicle "capacity weight" expressed as "The combined weight of occupants and cargo should never exceed XXX kilograms or XXX pounds."

In the context of dealers possibly installing additional equipment onto the vehicles, you ask whether alterations that result in even small changes in vehicle weight necessitate applying a new placard onto that vehicle. In some circumstances, a new placard would be needed.

Vehicle capacity weight is defined in FMVSS No. 110 as the rated cargo and luggage load plus 68 kilograms (150 pounds) times the vehicles designated seating capacity. As explained in an April 25, 2002, letter to Mr. Kenneth Conway, the term "rated cargo and luggage load" is not defined in our standards, but generally, it refers to the vehicle manufacturers determination of the cargo and luggage carrying capacity of the vehicle. As explained below, the vehicle capacity weight cannot exceed the difference between the Gross Vehicle Weight Rating (GVWR) specified by the manufacturer and the unloaded vehicle weight.

Under 49 CFR 567.4(g)(3), vehicle manufacturers cannot specify a GVWR that is less than the sum of the unloaded vehicle weight, rated cargo and luggage load, and 150 pounds times the vehicles designated seating capacity. That is, the GVWR must be equal to or greater than the unloaded vehicle weight plus the vehicle capacity weight.

"Unloaded vehicle weight" is defined in 49 CFR 571.3 as "the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use."

Under 49 U.S.C. 30112, a dealer may not sell vehicles or equipment that do not comply with applicable safety standards. Also, 49 U.S.C. 30122 prohibits dealers and certain other entities from "making inoperative, in whole or in part" any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. Accordingly, a dealer must replace the vehicle placard if, after the dealer installs additional equipment, the information required by S4.3(a) is no longer accurate.

In order to determine if the vehicle capacity weight has changed as a result of installing additional equipment, a dealer can subtract the unloaded weight of the vehicle (with any additional equipment installed by the dealer) from the GVWR. If the resulting vehicle capacity weight is below the amount stated on the placard, the dealer must replace the vehicle placard because the information required by S4.3(a) will no longer be accurate.

If the GVWR specified by the vehicle manufacturer is greater than the sum of the unloaded vehicle weight (prior to installation of additional equipment) and the vehicle capacity weight specified on the vehicle placard, then there may be instances where installation of small amounts of additional equipment would not diminish the vehicle capacity weight specified on the placard. That is, the difference between the GVWR and the new unloaded weight of the vehicle (with additional equipment installed by the dealer) would not be less than the vehicle capacity weight specified on the placard.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:110
d.9/30/04

ID: GF005279

Mr. Fred Anderson
President
BrakeQuip International, Inc.
1470 Amherst Road
Knoxville, TN 37909

Dear Mr. Anderson:

This responds to your letter of July 16 and subsequent phone conversation with George Feygin of my staff asking whether the National Highway Traffic Safety Administration (NHTSA) "recognizes and accepts other countries test standards." Specifically, you state that the Australian standard ADR7 and Canadian standard CMVSS106 were both adopted from the Federal Motor Vehicle Safety Standard No. 106, Brake Hoses (FMVSS No. 106), and are identical to that standard. Your product is certified to the Canadian and Australian standards. You ask whether your product has to be "re-tested in the U.S." before certifying compliance with FMVSS No. 106.

By way of background, NHTSA administers Federal requirements applicable to the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment, including brake hoses.  NHTSA issues Federal motor vehicle safety standards applicable to new vehicles and equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (Vehicle Safety Act) [1] , establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards.

NHTSA tests vehicles and equipment for compliance with the Federal motor vehicle safety standards and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify owners and purchasers of its product and remedy the problem free of charge.

Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA follows these specified test procedures and conditions when conducting its compliance testing.

Manufacturers are not required to test their products in the manner specified in the relevant safety standard, or even to test the product at all, as their basis for certifying that the product complies with all relevant standards. A manufacturer may choose any valid means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard and to provide a basis for its certification of compliance.

If the agency has reason to believe that an apparent noncompliance exists in a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, the manufacturer will have to recall the product to bring it into compliance at no charge to the customer. In addition, the manufacturer will be subject to civil penalties unless it can establish that it had no reason to know despite exercising "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, that the product did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). In addition, a manufacturer is prohibited from selling or making available for sale any vehicle or equipment that does not comply with all applicable Federal motor vehicle safety standards.

We cannot provide you with assurance that relying on testing conducted for Canadian and Australian standards would be sufficient to demonstrate "reasonable care." This agency has long said that it is unable to judge what efforts would constitute "reasonable care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "reasonable care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:106
d.8/12/03





---

[1] 49 U.S.C. 30101 et seq.

ID: 24460_CE_White_built-in

Mr. Scott Hiler
The C.E. White Co.
417 Kibler Street
P.O. Box 308
New Washington, OH 44854-0308




Dear Mr. Hiler:

This responds to your May 3, 2002, letter asking about Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225). We understand that your company manufactures seating systems for school buses and other vehicles. You ask whether the "C.E. White Co.s Child Restraint seat" can be "substituted for all required LATCH locations in a vehicle?" ^[1] Our answer is the seat can be substituted for one, but not all, LATCH systems.

Background

Standard No. 225 requires vehicles to be equipped with a specified number of "child restraint anchorage systems." "Child restraint anchorage system" is defined in S3 of the standard as:

a vehicle system that is designed for attaching a child restraint system to a vehicle at a particular designated seating position, consisting of:

(a) Two lower anchorages meeting the requirements of S9; and

(b) A tether anchorage meeting the requirements of S6.

Stated briefly, S4 of the standard requires vehicles to have a "child restraint anchorage system" at not fewer than two forward-facing rear designated seating positions. ^[2] S5(b) of the standard specifies that a vehicle may be equipped with a built-in child restraint system conforming to the requirements of Standard No. 213 (49 CFR 571.213), instead of one of the required child restraint anchorage systems. ^[3]

Discussion

You ask: "Since the C.E. White Co.s Child Restraint seat is considered a "Child Restraint Anchorage" as per S3, Definitions, could it be used as a substitution for all required LATCH locations in a vehicle?" Our answer is no. As stated above, the standard has a specific definition of a "child restraint anchorage system." While your child restraint seat may have certain features meeting the definition in S3 of a "child restraint anchorage," it does not possess the necessary features to meet the definition of a "child restraint anchorage system" under FMVSS No. 225. Since it is not a child restraint anchorage system, it cannot be substituted for all equired LATCH systems. Accordingly, a vehicle manufacturer must install the standards LATCH system on its vehicles. However, S5(b) of Standard No. 225 permits the manufacturer to substitute one of the required LATCH systems (or tether anchorages) with your built-in child restraint, provided that the seat meets the requirements of Standard No. 213.

We believe that requiring one type of attachment system on vehicles better standardizes the anchorage system. Standardizing the system reduces the potential for confusion on the part of consumers who might look for or expect one type of anchorage system and find another. Standardizing the system increases the likelihood that consumers will be familiar with the anchorage system and correctly use it. Standardizing the system also maintains better control over the compatibility between child restraints and the vehicle anchorage system. For these reasons, the LATCH system is required to be installed on all vehicles.

I hope this information is helpful. Please contact Deirdre Fujita of my staff at (202) 366-2992 if you have further questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:225
d.8/22/02

---

^[1] "LATCH" stands for "Lower Anchors and Tethers for Children," a term that was developed by child restraint manufacturers and retailers to refer to the standardized child restraint anchorage system required by Standard No. 225. For convenience, this letter uses the term "LATCH system" in describing the Standard No. 225 anchorage system.

^[2] A tether anchorage is also required at a third forward-facing rear designated seating position, if the vehicle is equipped with at least three forward-facing rear designated seating positions. S5(a) excludes convertibles and school buses from the requirement to be equipped with tether anchorages.

^[3] A built-in system may also be substituted for the third tether anchorage that must be installed in vehicles equipped with at least three forward-facing rear designated seating positions (S5b).

ID: 1984-1.50

TYPE: INTERPRETATION-NHTSA

DATE: 05/14/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Department of State Police; Commonwealth of Virginia

TITLE: FMVSS INTERPRETATION

TEXT:

U.S. Department of Transportation

National Highway Traffic Safety Administration

MAY 14 1984

B. R. Belsches, Captain Safety Officer Department of State Police Commonwealth of Virginia P.O. Box 27472 Richmond, Virginia 23261-7472

Dear Captain Belsches:

This is in response to your letter of April 20, 1984, asking for an interpretation of paragraph S4.6(b) of Motor Vehicle Safety Standard No. 108 and "a history relative to the inclusion of such function of headlamps and marker lamps."

Paragraph S4.6(b) allows means to be provided for the automatic flashing of headlamps and side marker lamps for signaling purposes, as an exception to the general rule that vehicle lamps (other than turn and hazard warning signals, and school bus warning lamps) be steady-burning in use. This confirms your understanding of the wording of the standard and its effect. It does not allow, however,modulating headlamps which do not flash on and off, but deviate between a higher intensity end a lower one.

Originally, paragraph S3.5 of the standard (see e.g . 49 CFR 371.21, Standard No. 108 rev. as of January 1, 1970) stated that "normally steady-burning lamps may be capable of being flashed for signaling purposes." On January 3, 1970, the agency proposed paragraph S4.6 (35 F.R. 106) as it exists today. It was adopted on October 31, 1970 (35 F.R. 16840). The agency observed that some commenters requested that additional lamps be permitted to flash and some requested that flashing headlamps be prohibited. It also noted that, with the exceptions set forth in S4.6(a), flashing lamps should be reserved for emergency and road maintenance-type vehicles, and that flashing lamps are otherwise prohibited in the Uniform Vehicle Code. The agency further noted that lamps could be flashed by the driver merely by turning the switch on and off, and that itcould not prohibit that type of operation, but that the definition of "Flash," also adopted in the amendments, made clear that automatic flashers for use with steady-burning lamps other than headlamps and side marker lamps were prohibited.

This is the rulemaking history of paragraph S4.6. I hope that this will answer your questions.

Sincerely,

Frank Berndt Chief Counsel

COMMONWEALTH of VIRGINIA

DEPARTMENT OF STATE POLICE P.O.Box 2472, Richmond, Virginia 23261-7472

April 20, 1984

Mr. Frank Berndt Chief Counsel, NHTSA 400 Seventh Street, S.W. Washington, D. C. 20590

Dear Mr. Berndt:

In Virginia we prohibit flashing or modulating headlamps used for the purpose of emergency warning; however, there appears to be some conflict to this Virginia mandate in the Federal Motor Vehicle Safety Standards.

I refer to 49CFR (FMVSS), Part 571.108, Paragraph S4.6, Subparagraph b. From the wording in this paragraph, it appears that manufacturers are permitted to provide a means to flash headlamps and side marker lamps for signaling purposes.

Would you provide us an interpretation of this paragraph and, if possible, a history relative to the inclusion and benefit of such function of headlamps and marker lamps.

Sincerely,

B. R. Belsches, Captain Safety Officer (AC-804-323-2017)

BRB/kf

ID: nht78-2.25

DATE: 03/20/78

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: General Cable Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of February 3, 1978, concerning placement of the rear identification lamps on a truck. Because the truck has a mast assembly located on the longitudinal axis of the vehicle and center of the rear axle, you have asked whether the lamps should be mounted "on the mast as high as possible or on the rear face of the rear floor decking."

Table II of Federal Motor Vehicle Safety Standard No. 108 requires rear identification lamps to be mounted "as close as practicable to the top of the vehicle. . . ." If placement on the mast interferes with the operation of the lift, or if the lamp would be easily damaged in that location, that location would not appear to be "practicable" within the meaning of Standard No. 108, and the deck location would fulfill the practicability requirements.

You have also asked which is more important in locating identification lamps: "(1) . . . as high as possible on a stationary surface and face the lights toward the rear, or (2) to locate to the most rearward surface and then as high as possible on that surface". Your first choice is the correct one. The purpose of the three lamp cluster is to identify large and frequently slow moving vehicles under conditions of reduced visibility. Therefore, it is more important for the lamps to be located high than it is for them to be at the rear end of the vehicle, for example, on the cab rather than at the deck end. However, the decision as to what is "practicable" is initially that of the manufacturer and we have generally found those decisions to be correct.

SINCERELY,

General Cable

February 3, 1978

Department of Transportation c/o Bradley E. Marks

Dear Mr. Marks:

We, at General Cable, primarily design and manufacture vehicles with aerial lifts for personnel to service electrical utilities. For this type of equipment, we seem to have a problem truly defining a section of F.M.V.S.S.108 for our application.

The particular section in question is the location of the rear identification lights.

Since we design a lift whose mast assembly is located approximately on the longitudinal axis of the truck and centerline of the rear axle, should we mount the cluster of lamps on the mast as high as possible, or on the rear face of the rear floor decking? The definition of the exact location is rather vague for our industry.

Also, Mr. Marks, we have a secondary problem. Standardization of the lighting location. This mast assembly may, at some time in the future, be located further forward, just behind the truck cab. This would require the turret, boom, boom rest and basket to be positioned towards the rear of the vehicle.

The way I've interpreted the law for this particular configuration would have us locating the cluster of lights on the rear face of the rear floor decking. This due in part to the photometric interference from the basket and/or boom and boom rest assemblies.

At this point in time I must now ask, which is more important in locating these lights: (1) to locate as high as possible on a stationary surface and face the lights towards the rear? or (2) to locate to the most rearward surface and then as high as possible on that surface?

We would like a ruling on this matter as soon as possible as production of this unit is scheduled within the coming weeks.

Thank you very much, Mr. Marks, for your co-operation in this matter. Any response to this problem may be addressed either to myself or my superior, Mr. Bill Hensley, Chief Engineer.

Garry Williams Body Designer Telsta Group

cc: Bill Hensley; Van Walbridge

ID: ModelYearJonesLet.4

Erika Z. Jones, Esq.
Mayer, Brown, Rowe & Maw
1909 K Street, NW
Washington, DC 20006-1101

Dear Ms. Jones:

This responds to your letter of November 19, 2002, regarding Vehicle Identification Number (VIN) requirements (49 CFR Part 565). Specifically, you ask whether 49 CFR 565.6(d)(1) permits a manufacturer to designate vehicles as belonging to a single model year, where the production period for such vehicles falls within three different calendar years, but runs for less than 24 months in total. Based upon the definition of the term "model year" in 49 CFR 565.3(j), the answer is no.

We are pleased to clarify this provision of the National Highway Traffic Safety Administrations (NHTSAs) regulations dealing with VIN requirements. Under 49 CFR 565.6(d)(1), manufacturers are directed to include a character for model year as the first character of the fourth section of the VIN, with the year-specific alphanumeric code drawn from Table VI of that section. Under 49 CFR 565.3(j), the term "model year" is defined as "the year used to designate a discrete vehicle model, irrespective of the calendar year in which the vehicle was actually produced, so long as the actual period is less than two calendar years."

Before the agency promulgated a final rule moving VIN requirements to Part 565 (48 FR 22567, May 19, 1983), those requirements were found in Federal Motor Vehicle Safety Standard (FMVSS) No. 115. As your letter observes, the final rule states that "[t]he basic substantive requirements of Standard 115 are unchanged by this action." 48 FR 22567, 22567. However, in the notice of proposed rulemaking (NPRM) that preceded the final rule, the agency did note that "[s]ome minor clarifications are also being proposed in this notice." 47 FR 42004, 42005 (Sept. 23, 1982).

One of those clarifications concerned the definition of "model year," for the purpose of the VIN regulations. In its migration from FMVSS No. 115 to Part 565, the definition of "model year" was changed slightly, with the word "calendar" added to the text requiring that the actual period of production be "less than two calendar years."

Before that change, the definition of "model year" read: "the year used to designate a discrete vehicle model irrespective of the calendar year in which the vehicle was actually produced, so long as the actual period is less than 2 years." Although we recognize that, as you suggest, it would have been possible to construe the reference to "2 years" in that definition as meaning any 24-month period, the presence of the term "calendar year" earlier in the same sentence would have equally supported an alternative construction that "2 years" referred to two calendar years. Thus, the 1983 addition of the word "calendar" to the definition of "model year" clarified the earlier definition in order to remove any possible ambiguity as to the meaning of "years."

The agency received no comments objecting to this amendment in response to the NPRM, and the final rules definition of the term "model year" has remained in place for nearly two decades. Moreover, interpreting the term "model year" to mean any 24-month period, as your letter suggests, would require us to read out the concept of "calendar year" from the definition at 49 CFR 565.3(j).

As you apparently realize, vehicles manufactured in calendar year 2003 could not be designed as MY 2005 vehicles for purposes of the Corporate Average Fuel Economy (CAFE) program (see 49 U.S.C. 32901(a)(15)) or the Theft Protection requirements (see 49 U.S.C. 33101(8)). While we recognize that those programs are authorized under a different statute than the VIN program, we see no reason to construe the VIN requirements in a manner that would allow vehicles to have different model years for different purposes.

If you have any questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack
Assistant Chief Counsel

ref:565
d.2/4/03

ID: nht69-2.41

DATE: 04/23/69

FROM: AUTHOR UNAVAILABLE; Robert Brenner; NHTSA

TO: IFFISA

TITLE: FMVSR INTERPRETATION

TEXT: We regret the delay in replying to your letter of January 15, 1969, to Dr. William Haddon, Jr., concerning regulations applicable to replicas of antique automobiles which you manufacture.

As a general rule, motor vehicles manufactured on or after January 1, 1968, must comply with all applicable Federal Motor Vehicle Safety Standards in order to be imported into the United States. Section 114 of the National Traffic and Motor Vehicle Safety Act of 1966 (the Act) requires that manufacturers permanently affix a tag or label to the motor vehicle certifying that the motor vehicle conforms to all applicable Federal Motor Vehicle Safety Standards (FMVSS) established under authority of Section 103 of the Act. Your vehicles would properly be classified as passenger cars. Thus the FMVSS applicable to this classification would apply. The above standards are currently applicable only to motor vehicles over 1,000 pounds curb weight. Curb weight includes a full bad of engine fuel, oil, and coolant as defined in 49 CFR 371.3. In accordance with a proposed rule making published in 32 FR, page 14282, October 14, 1967, the Administrator is considering adding new standards applicable to motor vehicles of 1,000 pounds or less curb weight, and revising certain of the initial standards to extend their applicability to these motor vehicles. Comments have been received from industry and a discussion paper on the subject prepared. This discussion paper will be mailed to industry in the near furture, together with a notice of a meeting to be held on the subject. Your name is being added to the mailing list for this information.

19 CFR 12.80, Importation of Motor Vehicles and Items of Motor Vehicle Equipment, was jointly issued and published by the Secretary of Transportation and the Secretary of Treasury in implementation of Section 108(b)(3) of the Act. This regulation makes provision for importation of certain motor vehicles not conforming to the Federal Motor Vehicle Safety Standards, subject to specific conditions.

An amendment to the Act has granted authority to the Secretary of Transportation, based upon certain specified findings, to exempt temporarily, a limited production motor vehicle from any Federal Motor Vehicle Safety Standard. A limited production motor vehicle is defined as a motor vehicle produced by a manufacturer whose total motor vehicle production, as determined by the Secretary, does not exceed 500 annually. It is to be noted, however, that exemptions are granted to the person actually producing the motor vehicle, not to the importer or distributor of such motor vehicle. Regulations for petitioning for an exemption are contained in 49 CFR 355.5.

In the United States, motor vehicles are licensed for operation by each of the states and the District of Columbia. A letter addressed to the State Department of Motor Vehicles in the capitol city of the states in which you intend marketing your product, should reach an individual who can provide you with information regarding state licensing requirements.

While you did not inquire about Federal regulations concerning control of anti-pollution emission devices, this is another area of possible effect in your situation. These regulations are not the responsibility of the Department of Transportation but of the Department of Health, Education and Welfare. By copy of this letter, Mr. William H. Megonnell, Associate Commissioner for Standards and Compliance, Department of Health, Education and Welfare, National Air Pollution Control Administration, BCT, 801 North Randolph Street, Arlington, Virginia, 22203, is being requested to forward such information as he deems appropriate.

Publications of the Socity of Automotive Engineers (SAE), including copies of SAE Standards, may be obtained by writing to: Society of Automotive Engineers, Inc., 2 Pennsylvania Plaza, New York, New York, 1001.

For your information and guidance, enclosed are copies of the Act, as amended; the Federal Motor Vehicle Safety Standards, (49 CFR 351, 353, 355 and 371); 19 CFR 12.80, Importation of Motor Vehicles and Items of Motor Vehicle Equipment; Declaration Form HS-7, Importation of Motor Vehicles and Motor Vehicle Equipment Subject to Federal Motor Vehicle Safety Standards and the proposed rule making, Docket 5-1.

ENCLOSURES

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.

ID: tunick

Lance Tunick, Esquire
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078

Dear Mr. Tunick:

This responds to a message that you e-mailed to Coleman Sachs of my staff concerning a statement in an interpretation letter dated May 24, 2002 that we sent to Mr. Dick Keller of Bruno Independent Living Aids, Inc. of Oconomowoc, Wisconsin (Bruno). That letter addressed whether the replacement of a seat supplied on a motor vehicle as original equipment with a device developed by Bruno to facilitate the transfer of a mobility-impaired individual between a motor vehicle and a wheelchair would constitute an alteration that triggers the vehicle certification requirements in 49 CFR Part 567.

In discussing this matter, we noted that if the device were installed after the vehicles first retail sale, the installation would not constitute an alteration, but the installer would be prohibited under 49 U.S.C. 30122(b) from knowingly making inoperative any device or element of design installed on the vehicle in compliance with an applicable Federal motor vehicle safety standard (FMVSS). We further noted that in a final rule issued on February 27, 2001 (at 66 FR 12628), the agency created an exemption from this prohibition for motor vehicle repair businesses that modify vehicles to enable persons with disabilities to operate or ride as passengers in those vehicles. We stated that by virtue of this exemption, if the seating transfer device developed by Bruno "were to be installed in a vehicle after a sales contract is entered for the delivery of that vehicle, but prior to the actual transfer of title . . . the installer would not be subject to the making inoperative prohibitions of 49 U.S.C. 30122(b)."

Your message took issue with the latter statement. In particular, you contended that since the February 27, 2001 final rule, which is codified at 49 CFR Part 595, "only provides for an exemption from the making inoperative prohibition as regards FMVSS No. 207 when no driver seat is provided, then an installer of a seating system would be subject to the making inoperative prohibitions" (emphasis in original). Referencing 49 CFR 595.7(c)(13). You further noted, however, the agencys pronouncement, in its letter of August 21, 2001 to B&D Independence Co. Inc., that it would not pursue an enforcement action against the installer for a violation of the "making inoperative" prohibition if the installer follows procedures set forth in that letter.

We have reviewed our May 24, 2002 letter to Bruno in light of the concerns you have raised, and agree that it incorrectly implies that an exemption from the "making inoperative" prohibition is available, without limitation, to a motor vehicle repair business that replaces a seat supplied on a motor vehicle as original equipment with a transfer device such as the one developed by Bruno. Our letter to B&D Independence Co. noted, in fact, that the final rule establishing the amendments to Part 595 "does not contain any exemptions from Standard No. 207 or Standard No. 210 allowing for the installation of six-way power seat bases" similar to the device that Bruno is marketing.

Insofar as Standard No. 207 is concerned, the exemption from the "making inoperative" prohibition is only available under the Part 595 regulations "in any case in which a vehicle is modified to be driven by a person seated in a wheelchair and no other drivers seat is supplied with the vehicle, provided that a wheelchair securement device is installed at the drivers position." See 49 CFR 595.7(c)(13). Since the device marketed by Bruno would not result in "a wheelchair securement device [being] installed at the drivers position," so as to permit the "vehicle to be driven by a person seated in a wheelchair," no exemption from the making inoperative prohibition with respect to the requirements of Standard No. 207 is available under Part 595 to a motor vehicle repair business that installs such a device.

Our May 24, 2002 letter to Bruno is clarified accordingly. Thank you for bringing this matter to our attention.

Sincerely,

Jacqueline Glassman
Chief Counsel

cc: Mr. Dick Keller

Bruno Independent Living Aids, Inc.
P.O. Box 84
Oconomowoc, WI 53066

ref:567
d.1/16/03

ID: 07-003334as