ID: 1985-04.5

TYPE: INTERPRETATION-NHTSA

DATE: 10/26/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Charles Pekow -- Editor, Day Care Information Service

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Charles Pekow Editor, Day Care Information Service 4550 Montgomery Ave., Suite 700 N Bethesda, Maryland 20814

This responds to your July 23, 1985 letter to the National Highway Traffic Safety Administration (NHTSA) asking several questions about our school bus regulations and their applicability to the buses used by Head Start centers. In our previous letter to you of August 1, 1985, we explained that a Head Start facility is considered a "school" for purposes of determining the applicability of our school bus safety standards. Keep in mind, therefore, that the following discussion of "school buses" includes buses used by Head Start centers.

Your first question asked, "What Federal regulations apply to the sale, operation and maintenance of buses in Head Start?"

NHTSA has two sets of regulations, issued under different Acts of Congress, that apply to school buses used by Head Start centers. The first set, issued under the authority of the National Traffic and Motor Vehicle Safety Act of 1966, applies to the manufacture and sale of new school buses and other types of motor vehicles. In 1974, Congress amended the Vehicle Safety Act to direct NHTSA to issue safety standards on various aspects of school bus performance, such as seating systems, windows and windshields, emergency exits, and fuel systems. The safety standards we issued became effective April 1, 1977, and apply to all school buses manufactured on or after that date.

Federal law requires any person selling a new "school bus" to ensure that the bus complies with all applicable safety standards. Under our regulations, a "school bus" is a motor vehicle designed for 11 or more persons (including the driver) and sold for transporting students to and from school or related events. If any new school bus does not meet those standards, the seller may be required to recall the vehicle and to pay civil penalties.

Federal regulations pertaining to the operation and maintenance of school vehicles are found in the highway safety program standards NHTSA issued under the authority of the Highway Safety Act of 1966. These standards provide guidelines to the States for their highway safety programs. One of these program standards, Highway Safety Program Standard No. 17, Pupil Transportation Safety (copy enclosed), provides recommended procedures for a State's pupil transportation program (covering areas such as school bus operation, maintenance, and identification). Individual States have chosen to adopt same or all of our guidelines as their own policies governing their highway safety programs for pupil transportation. While we have stressed the importance of a strong pupil transportation program, consistent with Program Standard No. 17, we have not insisted that the States comply with every feature of the standard. The requirements for school bus operation and maintenance, therefore, are matters left to the individual States to determine.

Your second question asked, "Must Head Start buses meet the same regulations required of public schools?"

Since a Head Start facility is considered a "school" for purposes of the Vehicle Safety Act, persons selling new buses to such schools are required to sell buses that comply with our school bus safety standards. This requirement is imposed on sellers regardless of whether the purchasing facility is a Head Start center or a strictly public or private school.

Your third question asked, "To what extent has the Department of Transportation researched these questions?"

NHTSA conducted substantial research into school bus safety issues. When NHTSA developed the school bus safety standards, the agency evaluated the performance characteristics of various types of vehicles to determine the necessary requirements that would reduce the number of school bus fatalities and the severity of injuries. Among our conclusions was that the larger school buses weighing over 10,000 pounds should be constructed to provide passenger crash protection through a concept called "compartmentalization." Compartmentalization requires that the interior of those school buses include higher and stronger seat backs, additional seat padding, and improved seat spacing and performance.

Since smaller buses, such as 10-passenger vans, experience different crash forces than larger buses and differ substantially in design, our safety standards were developed to specify particular requirements appropriate for the smaller type of vehicle. For instance, based on our assessment of the crashworthiness of those vehicles, the agency determined that school buses weighing 10,000 pounds or less must be equipped with safety belts.

There are lengthy engineering reports discussing school bus safety that you might be interested in which are available from the National Technical Information Service (NTIS). I have included a bibliography of those reports for your information. You can contact the NTIS at the following address:

The National Technical Information Service Department of Commerce 5285 Port Royal Road Springfield, Virginia 22161 (703) 557-4600

Your fourth question asked, "If any regulations apply, what types of enforcement efforts has the department made?"

In the years since the issuance of the school bus safety standards, NHTSA's Enforcement Office has contacted a number of dealers when it became known that they were supplying improper vehicles to schools. In most cases, the problems were remedied without the need for extensive enforcement actions Moreover, NHTSA will take necessary steps, including directing vehicle recalls and imposing fines, to enforce the Vehicle Safety Act provisions against the manufacture and sale of noncomplying vehicles.

Your last question asked, "Are many grantees out of compliance to the best of your knowledge?"

Since the parties subject to the Federal school bus regulations are the manufacturers and sellers of new school buses, and not the schools using the buses, the regulations applicable to Head Start centers would be those established by State law on school bus operation. State officials should be able to provide you with information concerning the compliance of Head Start school bus programs with State requirements.

I hope this information is helpful. If you have further questions, please contact this office.

Sincerely, Jeffrey R. Miller Chief Counsel Enclosure July 23, 1985

Mr. Jeffrey Miller, chief counsel National Highway Traffic Safety Administration Rm. 5219 400 7th St. NW Washington, DC 20510

Dear Mr. Miller:

One of your staffers today suggested I write requesting information for a study I'm making regarding safety of buses used to transport children to Head Start centers.

I would like answers to the following questions: What federal regulations apply to sale, operation and maintenance of buses in Head Start?

Must Head Start buses meet the same regulations required of public schools?

To what extent has the Dept. of Transportation researched these questions?

If any regulations apply, what types of enforcement efforts has the department made?

Are many grantees out of compliance to the best of your knowledge?

My research has indicated that many children are being bused to Head Start programs in buses lacking careful maintenance and safety features. I am planning to publish an article on the topic in the Day Care Information Service newsletter soon and would appreciate a swift reply.

Looking forward to hearing from you soon, I remain,

Sincerely yours, Charles Pekow editor Day Care Information Service

ID: nht88-2.45

TYPE: INTERPRETATION-NHTSA

DATE: 06/08/88

FROM: LACY H. THORNBURG -- ATTORNEY GENERAL; MABEL Y. BULLOCK -- ASSISTANT ATTORNEY GENERAL NORTH CAROLINA

TO: SUSAN SCHRUTH -- NATIONAL HIGHWAY AND TRAFFIC SAFETY ADMINISTRATION SAFETY ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION

TITLE: WINDOW TINTING; FEDERAL PRE-EMPTION OF STATE REGULATIONS

ATTACHMT: ATTACHED TO LETTER DATED 04/13/89 FROM ERIKA Z. JONES -- NHTSA TO MABEL Y. BULLOCK, REDBOOK A33, STANDARD 215, VSA 103 (D), VSA SECTION 108 (A)(2)(A); LETTER DATED 12/18/87 FROM LACY H. THORNBURG AND MABEL Y. BULLOCK, SUBJECT MOTOR VEHICLES, RE GULATIONS OF DARK SHADED WINDOWS; PREEMPTION; LETTER DATED 05/06/88 FROM DAIRL BRAGG TO WILLIAM S. HIATT; LETTER DATED 10/28/82 FROM FRANK BERNDT -- NHTSA TO LAWRENCE T. HIROHATA, N0A-30; LETTER DATED 04/04/85 FROM JEFFREY R. MILLER TO ARMOND CARDARELLI; REGULATIONS DATED 07/01/85 EST, FEDERAL AUTO SAFETY LAWS AND MOTOR VEHICLE WINDOW TINTING

TEXT: Dear Susan:

It has taken a little longer than I anticipated to get this letter to you. I appreciate your taking the time to talk with me on the several occasions that I have called to discuss window tinting with you.

I have enclosed a copy of North Carolina's statute regulating window tinting and a copy of the regulations filed pursuant to the statute. I have also enclosed an Attorney General opinion interpreting the statute, recent correspondence from Mr. Daryll Bragg and past correspondence from various NHTSA representatives.

My position is that because our statute regulates both owner-operator of motor vehicles with window tinting and manufacturers of such window tinting material, it would be pre-empted by federal regulation if it allows a light transmittance requirement other than 70%.

North Carolina General Statute 20-127(f) regulates what type of tinted film the manufacturer is allowed to make available for installation on a motor vehicle in North Carolina. It seems that the wording in 15 USC @ 1391(4) and 15 USC @ 1397 (a)(2)(A) would preempt our state statute if less than 70% light transmittance in window tinting material was permitted -- based on the regulation of the manufacturer, not the operation of the motor vehicle.

Please let me know your interpretation of this matter. As I interpret past correspondence from NHTSA, it is your agency's position that the federal regulations do cover after-market tinting on used motor vehicles. If you would like to discuss this m atter further by telephone, please call be at (919) 733-3254. Your assistance in this matter would be greatly appreciated.

(North Carolina statute omitted.) Sincerely,

ENCLOSURES

ID: 24780.drn

Mr. Kenneth Reed
Product Legislation and Compliance
Jaguar Cars
555 MacArthur Blvd.
Mahwah, NJ 07430-2327

Dear Mr. Reed:

This responds to your request for an interpretation of "daylight opening" in Federal Motor Vehicle Safety Standard No. 104, Windshield wiping and washing systems. You ask whether the daylight opening should be measured to the edge of complete blackout area, the start of dot fade area, or to some point in between. As explained below, the daylight opening is measured to the edge of complete blackout area on the windshield.

Daylight opening is defined at S3 of Standard No. 104 as: "the maximum unobstructed opening through the glazing surface, as defined in paragraph 2.3.12 of section E, Ground Vehicle Practice, SAE Aerospace-Automotive Drawing Standards, September 1963."

Paragraph 2.3.12 of the SAE standard states:

The term "Daylight Opening" (abbreviated DLO) refers to the maximum unobstructed opening through any glass aperture, including reveal or garnish moldings adjoining the glass, according to a given direction or projection. If not specified the dimension will be the vertical projection.

I note that SAE Recommended Practice J1100, which you quote, is a later SAE document, and not the one referenced in Standard No. 104. One difference between the definition of "daylight opening" in the older document and the one in J1100 is that the newer one treats "opaque coatings" in the same manner as reveal or garnish moldings.

Opaque coatings around the edge of the windshield are now used for the function once served by moldings, i.e., covering the glue around the edges of the windshield. Given this changed technology, we believe it is appropriate to treat opaque coatings around the edge of the windshield in the same manner as moldings, in interpreting the term "daylight opening" in Standard No. 104. However, this is only true for what you refer to as "complete blackout" or "truly opaque" areas. The dot fade area is not truly opaque, and is not analogous to moldings. Thus, daylight opening is measured to the edge of complete blackout area.

I hope this information is helpful. If you have any further questions, please contact Ms. Dorothy Nakama this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:104
d.5/6/03

ID: 77-1.13

TYPE: INTERPRETATION-NHTSA

DATE: 01/26/77

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Chrysler Corporation

TITLE: FMVSR INTERPRETATION

TEXT: I have acknowledged receipt of Chrysler Corporation's November 29 and December 20, 1976, petitions for rulemaking to amend the definition of "unloaded vehicle weight" that appears in 49 CFR 571.3. Copies of these petitions are attached.

The November 29 petition requests an amendment to reflect the interpretation that appeared in your July 16, 1976, letter to Jeep Corporation (copy attached). That interpretation, you will recall, was: "[the] weight of those accessories that are ordinarily removed from a vehicle when they are not in use . . . is not included in [unloaded vehicle weight]." I recommend that the November 29 petition be granted. The requested amendment of the definition can be issued as an interpretive amendment, without a prior notice of proposed rulemaking. Incidentally, such an amendment does not impinge on the agency's long-standing position that a motor vehicle is expected to comply with all applicable standards in the form in which it actually rolls off the dealer's lot, regardless of the accessories and optional equipment with which it is equipped. Instead, it affects the meaning of compliance, by implicitly requiring the agency to remove from the vehicle certain accessories -- which it has already determined ought not to be considered a part of the vehicle -- before compliance testing.

The December 20 petition requests a much more substantial amendment of the definition. Please note that, to the extent that it would affect Standard No. 301-75, Fuel System Integrity, the agency is constrained by the Congressional ratification of that standard in Section 108 of the Motor Vehicle and Schoolbus Safety Amendments of 1974. The requested amendment, which appears as if it would significantly reduce amendment does not impinge on the agency's long-standing position that a motor vehicle is expected to comply with all applicable standards in the form in which it actually rolls off the dealer's lot, regardless of the accessories and optional equipment with which it is equipped. Instead, it affects the meaning of compliance, by implicitly requiring the agency to remove from the vehicle certain accessories -- which it has already determined ought not to be considered as part of the vehicle -- before compliance testing.

The December 20 petition requests a much more substantial amendment of the definition. Please note that, to the extent that it would affect standard No. 301-75, Fuel System Integrity, the agency is constrained by the Congressional ratification of that standard in Section 10a of the Motor Vehicle and Schoolbus Safety Amendments of 1974. The requested amendment, which appears as if it would significantly reduce the severity of the standard's crash tests, could not be issued without an affirmative agency finding that it would not diminish the level of motor vehicle safety.

Please advise me of your recommendations on these petitions so that a response may be prepared.

ID: aiam4333

Dear Mr. Mehta: This is in reply to your letter of February 23, 1987, to the Departmen of Transportation. You mentioned an earlier letter dated January 9, 1987, enclosing a copy of your product catalogue, but I regret to say that this Office has not received it.; As a producer of motor vehicle lighting equipment, you have asked fo answers to the following questions:; >>>'1. Details of DOT/SAE approval required in marketing our Headlam Units 7 inch, 5 3/4 inch (Round) and Rectangular small and large'.<<<; In the United States no 'approval' is required to import the headlamp that you mention. However, the manufacturer must assure itself that the headlamp comply with the requirements of Federal Motor Vehicle Safety Standard No. 108, *Lamps, Reflective Devices, and Associated Equipment* (essentially those of the SAE for round and rectangular sealed beam headlamps), and certify each one as meeting all applicable Federal motor vehicle safety standards. This certification is a DOT symbol on the headlamp lens.; >>>2. Can we market those lamps as referred in Para. No. 1 fitted wit 9004, 9005 and 9006 Bulbs. If There is any specifications/technical details available with you, please send us a copy.'<<<; The headlamps discussed in paragraph 1 are sizes traditionall associated with sealed beam headlamps, rather than with replaceable bulbs such as the DOT HB1 (9004), HB3 (9005), and HB4 (9006). However, it is permissible to produce headlamps in these sizes, which incorporate replaceable light sources that are specified by Standard No. 108. However, such headlamps must meet all the requirements of the standard applicable to replaceable bulb headlamps. I enclose(sic) a copy of Standard No. 108 for your information.; >>>'3. We understand that the use 9004, 9005, 9006 bulbs are permitte on Headlamps with Lens and Reflectors made of Plastic. Kindly advise, if we can use these Reflectors made of metal?'<<<; Yes, a headlamp may have a reflector of either plastic or metal. >>>'4. Details of approval required for High Beam Driving Lamps to b use for off- road vehicle.'<<<; >>>'5. The details of specfications (sic) for Driving Lamps to be use on Cars, Trucks, etc.'<<<; Standard No. 108 does not require vehicles to be equipped with drivin lamps and it establishes no requirement for them. If there are any specifications or approvals required, they are those of the individual States in which these lamps would be sold and used. For further information on State requirements you should write: American Association of Motor Vehicle Administrators (AAMVA), 1201 connecticut Avenue, N.W., Washington, D.C.; It is the position of this Department that any headlamp unit which i capable of replacing a passenger car headlamp must meet the applicable requirements of Standard No. 108, even if it may also be used on off-road vehicles.; You have also asked for copies of 'SAE F-80 Front Fog Lamps' an SAE-J-79 Motor Cycle Headlamps'. We are not familiar with these materials and advise you to write: Society of Automotive Engineers Inc., 400 commonwealth Drive, Warrendale, Pa. 15096. As for 'Specification for Driving Lamps Using H3 Bulb', this appears to be a European specification unknown to us, as the H3 bulb is one that is not widely used in the United States.; The following is a listing of those requirements that must be complete before shipments begin. You must:; 1. Appoint an agent for service of process in accordance with Title 49 Code of Federal Regulations, Part 551 (49 CFR 551).; 2. Provide information as specified in 49 CFR 566, 'Manufacture Identification.'; If you determine in good faith that any lamp manufactured by you doe not conform with Standard No. 108 or contains a safety-related defect, section 151 (15 USC 1411) of the Act requires that you furnish notification to the Secretary and to owners in accordance with section 153 (15 USC 1413) and to remedy without cost the failure to conform or defect in accordance with 154 (15 USC 1414). Details are contained in 49 CFR 573, 576 and 579.; We are enclosing the following pertinent publications: 1. The Act 2. 19 CFR 12.80, 'Regulations for Motor Vehicle Importation' 3. 49 CFR 551, 'Procedure Rules' 4. 49 CFR 573, 'Defect and Noncompliance Reports' 5. 49 CFR 576, 'Record Retention' 6. 49 CFR 579, 'Defects and Noncompliance Responsibility' 7. Information for New Manufacturers of Motor Vehicle and Motor Vehicl Equipment; If we may be of further assistance, please let us know. Sincerely, Erika Z. Jones, Chief Counsel

ID: Milner.jgw

Mr. Mel Milner
Division of Field Investigation
State of New York Department of Motor Vehicles
6 Empire State Plaza
Albany, NY 12228

Dear Mr. Milner:

This is in reply to your letter of October 9, 2002, in which you ask how the requirements of 49 CFR 541.6 apply to two situations that have arisen in the course of your Divisions examination of rebuilt salvage vehicles.Your questions, and our answers, are as follow:

1) Is the R-DOT sticker required to have the same security features, and a standard format, as those listed under Sec. 541.5(d)(1), et al, CFR?Although we find that those identification stickers bearing a Vehicle Identification Number always meet the standards, we rarely find the R-DOT sticker meeting the listed standard, except for the dimensions of the sticker.

Depending on whether a replacement part is manufactured domestically or imported, the R-DOT label on the part must have all or some of the security features required for labels on original equipment parts under 49 CFR 541.5.If the part is manufactured domestically, 541.6(a) provides that the manufacturer must affix or inscribe the mark on the part "by means that comply with 541.5(d)," the provision in 49 CFR 541.5 that requires security features for parts on new vehicles.If the part is imported, 541.6(a) provides that the importer must mark it in accordance with 541.5(d)(2), which provides that the removal of the label must "visibly alter the appearance of the section of the vehicle part" on which it is placed.

Whether a part is manufactured domestically or imported, the label on the part must be in a specified format (with the manufacturers registered trademark or some other unique identifier, the letter R, and the DOT certification) and must be located within the target area specified by the original manufacturer of the vehicle for which the part is designed.

2) On a number of occasions vehicle rebuilders have presented parts to this Division without the R-DOT affixed, but were provided with R-DOT stickers by a parts distributor to affix themselves.A sample of such "loose" R-DOT stickers is attached on the following page.It is our position that only the manufacturer is permitted to affix the R-DOT sticker to the part.Is this position correct?

The R-DOT label must be affixed by the manufacturer, if the part is domestically manufactured (541.6(a)).If the part is imported, the label must be affixed by the importer (541.6(a)) before the part is imported (541.6(f)).In no case is it permissible to sell an unmarked replacement part.In the situation you describe, the parts distributor could not comply with 541.6 by selling unmarked parts and providing "loose" labels to be affixed by a rebuilder.

The sample labels attached to your letter contain only the R-DOT legend, with the subscript "Made in Taiwan."Because these labels do not contain the importers trademark or other unique identifier, they would not comply with 541.6(a) even if the imported affixed them before importing the parts.

I hope that this information is useful to you.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:541
d.11/12/02

ID: nht78-3.10

DATE: 09/22/78

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

TO: Mercedes-Benz of North America, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent question whether Mercedes may use a dynamic test to evaluate seat structure integrity instead of the static test specified in the testing procedures of Safety Standard No. 207.

The answer to your question is yes. A manufacturer is permitted to use whatever test procedures or methods of evaluation he chooses to assure its vehicles are in compliance with Federal motor vehicle safety standards. The legal requirement under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391, et seq.) is that the manufacturer exercise due care to determine that his vehicles will be in compliance with all applicable standards when tested by the agency in accordance with the test procedures specified in those standards.

Therefore, you may use a dynamic test method to determine the integrity of your vehicle seats if this constitutes the exercise of due care to assure the seats meet the performance requirements specified in Standard No. 207. Of course, it cannot be determined whether a manufacturer in fact exercised due care in advance of the actual events leading to the certification of compliance. Likewise, the agency will not approve a manufacturer's method of testing in advance of certification.

Please contact me if you have any further questions.

SINCERELY,

MERCEDES - BENZ OF NORTH AMERICA, INC.

July 3, 1978

National Highway Traffic Safety Administration

Attention: Office of Chief Counsel

Subject: Request for Interpretation; FMVSS 207

Dear Madam or Sir,

Federal Motor Vehicle Safety Standard No. 207 specifies in Section S5. Test Procedures, loading techniques to evaluate seat structure integrity. All figures in this standard depict draw bars or other force controlling devices typical of static testing procedures.

Mercedes-Benz of North America believes that such a description of these tests restricts a manufacturer from using alternative test procedures. It is also believed that dynamic testing techniques are more realistic and within the intent of this standard when they produce forces equal to or exceeding those specified in this standard. We would appreciate receiving your confirmation of this opinion at your earliest convenience to enable the use of a dynamic test as an alternative to the current technique specified.

HEINZ W. GERTH

ID: 86-1.34

TYPE: INTERPRETATION-NHTSA

DATE: 02/12/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. H. M. Metcalf

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. H. M. Metcalf 2860 Peachtree Road, N.W. Apt. 709 Atlanta, Georgia 30305-4155

Thank you for your letter asking about how our regulations would affect the modification of a vehicle to accomodate a handicapped person. I regret the delay in our response.

You explained that you have had a partial amputation of your left leg and want to have the seat in your car modified to make it easier for you to enter and operate your car. You said that no one will modify your car because of our regulations. You asked if you could obtain a waiver so that you could have a new car modified before its delivery to you. I hope the following discussion, explaining our regulations, will be of assistance to you.

Our agency is authorized to issue Federal Motor Vehicle Safety Standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers must certify that their products conform to our safety standards before they can be offered for sale. If a vehicle is altered prior to its first sale, then the person making the alteration must certify that the vehicle as altered continues to comply with the Federal safety standards.

In the case of a used vehicle, vehicle modifications are affected by section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. That section prohibits commercial businesses from knowingly rendering inoperative any elements of design installed on a vehicle in compliance with a Federal Motor Vehicle Safety Standard.

While the requirements and prohibitions discussed above apply to the general case, this agency has distinguished the situation where a vehicle must be modified to accommodate the special needs of a handicapped person. In this limited situation, we have been willing to consider any violations a purely technical one justified by public need, and have exercised our discretion not to take any enforcement action. In a case such as yours, I can assure you that the NHTSA would not institute enforcement proceedings against a motor vehicle dealer that modifies a seat to accommodate your condition. Modification of a safety system for legitimate medical reasons is not the type of action that the Vehicle Safety Act sought to prevent.

I suggest you show this letter to your dealer. If you have any further questions, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

Mr. Jeffery Miller, Chief Council National Highway Traffic Safety Administration 400 2nd. St. S.W. Washington, D.C. 20590

Dear Sir,

Two years ago, I had a "below the knee" amputation of my left leg. At that time I attempted to have my car seat modified to make it easier to enter and operate my car. No one would modify the car because of your agency's regulations.

Mr. Thomas Enright provided your name as the contact to obtain a waiver so that a car can be modified. My plans are to buy a new car and I would have it modified before delivery so that the manufacturer's warranty would not be voided.

I believe there are provisions in the regulations that allow a standard car to be modified for a handicapped person . Your assistance in obtaining the necessary information will be appreciated.

Yours truly,

H. M. Metcalf 2860 Peachtree Rd. N.W. Apt. # 709 Atlanta, Georgia 30305-4155

ID: aiam4665

"Dear Mr. Hutchinson: Thank you for your letter to Administrator Curr inquiring about the status of Volkswagen's exemption from certain provisions relating to the Corporate Average Fuel Economy (CAFE) program. The Administrator has asked me to respond. Your letter requested NHTSA's position on the status of Volkswagen's exemption from the provisions of section 503(b)(1) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C 1901 et seq.), and indicated that Volkswagen considers the exemption moot and terminated. As explained below, NHTSA considers the exemption terminated as of the beginning of model year (MY) 1989. In 1981 (46 FR 54453, November 2, 1981), NHTSA granted Volkswagen's petition seeking an exemption from the general statutory provision that a manufacturer's domestically manufactured passenger automobiles and non-domestically manufactured passenger automobiles be placed in separate fleets for purposes of determining compliance with CAFE standards. Such an exemption is authorized under section 503(b)(3)(A) of the statute. The statute prohibits a manufacturer so exempted from earning CAFE credits during the period of the exemption. At Volkswagen's request, NHTSA granted the exemption for the indefinite future, reserving the agency's right to reconsider its action if it appeared that the exemption was no longer consistent with the purposes of the Act. Your letter indicates that Volkswagen terminated the production of 'domestically manufactured' vehicles (i.e., vehicles whose domestic content exceeds 75 percent) on June 30, 1987, and that Volkswagen's U.S. production was terminated entirely effective July 14, 1988. You believe the exemption (including its prohibition on the accumulation of CAFE credits) should have ended on June 30, 1987, but in no event later than July 14, 1988. The primary legal issue raised by your letter is how exemptions can be terminated. Although the agency expects that exemptions will normally terminate only after affirmative agency action, automatic terminations are not precluded. However, we do not believe that an exemption terminates 'automatically' merely because a manufacturer terminates its production of vehicles with more than 75 percent domestic content or halts all U.S. production. To conclude otherwise could create confusion and result in exemptions being terminated in instances in which the exempted manufacturer wanted its exemption to continue. The possibility of such problems may be seen in a number of circumstances, e.g., if a manufacturer temporarily halts U.S. production and then resumes it, or if it permits domestic content to fall below 75 percent temporarily and then raises it. We note that, in situations in which a manufacturer allows the percent domestic content to fall below 75 percent and continues to produce vehicles in the U.S. with that level of domestic content, it is likely to be relatively easy for the manufacturer to raise the level back above 75 percent. There are circumstances in Volkswagen's case, however, that lead us to conclude its exemption terminated at the time Volkswagen's U.S. production terminated in its entirety (July 14, 1988). We believe it was evident at that time that Volkswagen was not merely halting U.S. production, but doing so with an intention to permanently abandon such production. We note, for example, that Volkswagen actively sought purchasers for its U.S. production facility in advance of its termination of U.S. production. While a manufacturer could change its mind after permanently abandoning U.S. production, resumption of U.S. production would be relatively difficult. Further, subsequent events, up to and including Volkswagen's February 1990 letter, have confirmed the appearances in 1988 of permanent termination of production. While it would have been preferable for those appearances to have been confirmed essentially contemporaneously, we conclude that Volkswagen terminated U.S. production with an intention to permanently abandon it, and that its exemption became moot at that time. Since Volkswagen could receive no benefit from the exemption, and clearly had no intention of resuming U.S. production, I conclude that the exemption should be considered terminated effective with the beginning of the first model year following the company's cessation of U.S. production, i.e., MY 1989. This decision is consistent with section 503(b)(3)(F) which provides that in any model year in which an exemption is effective, no credits may be earned. We interpret that section as requiring the bar to continue to the end of the model year in which the exemption terminated. Hence, the prohibition against earned credits is deemed to have ended with the beginning of the 1989 model year. I note that during MY 1989, Volkswagen accrued a CAFE credit excess of $28,798,575 for its passenger cars, and $56,310 for its light trucks. I hope you have found this information useful. Please do not hesitate to contact me if you have any questions concerning this matter. Sincerely, Paul Jackson Rice Chief Counsel";

ID: 86-6.28

TYPE: INTERPRETATION-NHTSA

DATE: 12/31/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Aaron M. Lowe -- Executive Director, Vehicle Security Association

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Aaron M. Lowe Executive Director Vehicle Security Association 5100 Forbes Boulevard Lanham, MD 20706

This responds to your letter dated July 22, 1986, requesting this agency to withdraw the granting of four petitions for exemption from the vehicle theft prevention standard.

You state in your letter that the Vehicle Security Association (VSA) challenges the granting of petitions to Volkswagen of America, Inc., General Motors Corporation, Isuzu Motors Corporation, and Nissan Research and Development, Inc. for exemption of certain vehicle lines beginning in model year 1987. For the reasons given below, the agency believes these petitions for exemption from the vehicle theft prevention standard were properly granted according to the requirements of section 605 of the Motor Vehicle Information and Cost Savings Act and 49 CFR Part 543, Petition for Exemption from the Vehicle Theft Prevention Standard.

You state that the lack of theft data concerning vehicles marked in accordance with the theft prevention standard makes it difficult for NHTSA to make a determination, based upon substantial evidence, that a standard equipment antitheft device is likely to be as effective as compliance with Part 541 in reducing and deterring theft. You add that the agency is not required to approve petitions for exemption and request that the agency withdraw its grants of those petitions for that reason.

Section 605 of the Motor Vehicle Information and Cost Savings Act permits vehicle manufacturers to petition NHTSA to allow high theft vehicle lines to be exempted from the standard. To be exempted, a high theft line must be equipped with an antitheft device as standard equipment and NHTSA must determine that antitheft device is likely to be as effective as parts making in reducing and deterring theft. This section requires that the agency's determination to grant or deny a petition be made within 120 days after the date of filing the petition. If the agency fails to make a determination within the specified time period, this section also states that the petition shall be considered granted.

In the notices granting the petitions filed by these four manufacturers, NHTSA noted that the limited and apparently conflicting data on the effectiveness of the pre-standard parts marking programs makes it difficult in the first year of this legislation's implementation to compare the effectiveness of an antitheft device with the effectiveness of compliance with the theft prevention standard. Section 605 clearly requires such a comparison, which the agency has made on the basis of the limited data available. However, the House Committee Report states that section 605 was adopted because the Committee was willing to give standard equipment antitheft devices "an opportunity to be proved as effective in deterring theft as the numbering standard." H. R. Rep. No. 1087, 98th Cong., 2d Sess., at 17. The agency believes that Congress did not intend that the data limitations in the early phase of implementing the theft prevention standard result in across-the-board denials of exemption petitions.

If, as the standard is implemented, NHTSA receives data indicating that a manufacturer's antitheft device has not been as effective in reducing and deterring motor vehicle theft as compliance with the theft prevention standard, the agency may terminate the exemption under section 605(d). The agency will be monitoring these and other theft data in an attempt to effectively implement the purposes of the vehicle theft legislation.

Sincerely

Erika Z. Jones Chief Counsel

July 22, 1986

Ms. Erika Jones Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

VSA officially challenges the granting of petitions to Volkswagon/Audi, General Motors, Isuzu, and Nissan by the National Highway Traffic Safety Administration (NHTSA) for exemptions from the marking requirements of The Motor Vehicle Theft Law Enforcement Act of 1984. VSA firmly contends that the petitions did not meet the requirements as established by the Act and therefore should not have been granted.

VSA is a trade association representing manufacturers, manufacturer's representatives, distributors, and retailers of vehicles security systems. These companies sell primarily in the aftermarket. While VSA strongly believes that the installation of security systems in cars can be of great benefit in preventing the incidence of theft, we also must point out that one of the prime benefits of aftermarket security systems as they are installed today in the variety of systems and the differences in installation of each system on each car. These permutations add a degree of difficulty for thieves attempting to steal cars with aftermarket antitheft systems.

The opposite holds true for cars standard equipped with security systems. NHTSA itself provides the reasoning behind this difference. In its "Report on Automobile Antitheft Devices," NHTSA states "once thieves had determined the means to defeat one manufacturer's system, they would, in essence, be able to defeat all such systems since they would be manufactured to the same specifications. Such a result would clearly be inconsistent with the goals of the Theft Act."

Although the agency confines its discussion to a federal standard for security systems, the argument can be extended against original equipment systems. All manufacturers if they standard equip a car line with a security system, must manufacture the systems to the same specifications. Therefore what is true for a federal standard also is true for a standard equipped system. Once a thief disengages a security system on one car in a car line, he can perform the same feat with the remainder of the cars he comes upon in that line. The word "standard" in either case spells trouble for the car owner who possesses such a system. VSA admits that impressive data on the effectiveness of standard equipped security systems was reported in the NHTSA "Report on Automobile Antitheft Devices" regarding the Nissan 280 ZX and the Cadillac Eldorado Convertible; however, NHTSA itself admits that this data is inconclusive. NHTSA's statistics seem to show that in the short term, a standard equipped system could be beneficial. However, as thieves learn the systems, we we question how effective they will be in the long term.

NHTSA's regulations mention that this provision of the Theft Act is to provide this technology an opportunity. VSA wonders whether a car owner who spends over $20,000 for a new car will appreciate it being stolen in order to provide the car companies with an experiment which they could have accomplished without government sanction. We further question whether a car owner will be grateful to hear, that once the car is stolen, recovery of the vehicle will be less likely because the car maker was exempted from the parts marking standard.

NHTSA seems to be inventing Congressional intent rather than implementing the letter of the law. Section 605 (a) (1) of the theft auto states: "Any manufacturer may petition the Secretary for an exemption from the application of any of the requirements of the vehicle theft prevention standard under section 602 for any line or lines of passenger motor vehicles which are equipped as standard equipment with an antitheft device which the Secretary determines is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the requirements of such standard." Part (c) of this section states that the Secretary shall make the determination based upon "substantial evidence".

NHTSA admits in its regulations that there is little substantial evidence from which to make that determination. "The agency realizes that empirical data bearing directly on the effectiveness of marking done in compliance with the theft prevention standard will not be available for petitions for model years 1987 or 1988. The agency will have to make determinations based partially on engineering judgements about the information otherwise available to the agency on the effectiveness of means for reducing and deterring theft".

VSA feels compelled to remind NHTSA that no where in the law is it required to approve exemptions. If NHTSA concludes that it cannot make a determination on whether a system will likely be as effective as marking parts based on substantial evidence, then the Agency should act responsibly and reject the petition. NHTSA appears to be struggling to justify the petitions based on "engineering judgements." Such tortured interpretations of the law are clearly contrary to public interest.

VSA therefore requests that NHTSA withdraw the granted petitions and instead require marking of the parts according to the law.

Thank you for your attention and we look forward to your response.

Sincerely,

Aaron M. Lowe Executive Director