ID: 9663

Mr. Ilmars Ozols
2925 Escoba Drive, Unit 206
Palm Springs, CA 92264

Dear Mr. Ozols:

This responds to your February 8, 1994, letter asking about how this agency's regulations might apply to your product, the Serv-o-tray. I am pleased to have this opportunity to explain our regulations.

It appears from the enclosed technical description and photograph that the Serve-o-tray is a folding adjustable table designed to mount between the driver and passenger seats of a vehicle, and hold food, drinks, etc. As depicted, the Serv-o- tray is secured to the center console with an adhesive pad. The table is mounted on a swiveling, articulated, lockable arm that is composed of two horizontal and two vertical tubular support members. The Serv-o-tray is made of injection molded plastic and is capable of supporting up to 20 pounds, including a laptop computer. You explain that your product is intended to be used while the vehicle is stationary or moving.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle ... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the Serv-o-tray, it appears that this product would be an accessory and thus an item of motor vehicle equipment. Based on our understanding of the product, it appears that a substantial portion of the expected use of the Serv-o-tray relates to motor vehicle operation, by allowing the occupants to eat while operating the car. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While the Serv-o-tray is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that you or NHTSA determines that the product contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

This agency is very concerned about the safety implications of the Serv-o-tray, especially if it is swiveled in front of the occupants in an air bag-equipped vehicle. Under the provisions of FMVSS No. 208, "Occupant Crash Protection," all new cars and trucks must be equipped with a driver side and passenger side air bag by September 1, 1998. Manufacturers are already producing ever increasing numbers of air bag-equipped cars and trucks. The enclosed document entitled "Sudden Impact" describes the speed with which an air bag deploys. Should the Serv-o-tray be installed in an air bag- equipped vehicle, the occupants could be at risk of injury or death from the interaction of the deploying air bag and the Serv-o-tray or its contents. To protect the occupant, this agency will require that every new vehicle with an air bag be provided with a caution label that states, among other things, "TO AVOID SERIOUS INJURY . . . Do not place any objects over the air bag or between the air bag and yourself." As you can see, the installation of a Serv-o-tray could be contrary to this warning.

There are other potential safety problems associated with the Serv-o-tray. Even without being propelled by an air bag, the Serv-o-tray or its contents could impact the occupant's head, abdomen or lower extremities during a collision. It also seems possible that the Serv-o-tray could interfere with the driver's use of the vehicle's transmission shift lever in an emergency situation. We ask that you consider these and all possible safety impacts of the Serv-o-tray.

If the Serv-o-tray were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle, with the Serv-o-tray installed, complies with all FMVSS's. Among the FMVSS's that might be affected by the Serv-o-tray installation are Standard No. 201, "Occupant Protection in Interior Impact" (copy enclosed), and Standard No. 208.

A commercial business that installs the Serv-o-tray would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your product if the Serv-o-tray renders inoperative the vehicle's compliance with the FMVSS's. For instance, installing the Serv-o-tray in front of the driver or passenger could degrade the performance of an air bag or the seat belts in the vehicle. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the Serv-o-tray in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so you might wish to consult State regulations to see whether your product would be permitted.

I hope this information is helpful. I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992. Sincerely

John Womack Acting Chief Counsel

Enclosure

ref:VSA d:5/6/94

ID: nht94-5.48

DATE: May 6, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Ilmars Ozols

TITLE: None

ATTACHMT: Attached To Letter Dated 2/8/94 From Ilmars Ozols To John Womack (OCC-9663)

TEXT: Dear Mr. Ozols:

This responds to your February 8, 1994, letter asking about how this agency's regulations might apply to your product, the Serv-o-tray. I am pleased to have this opportunity to explain our regulations.

It appears from the enclosed technical description and photograph that the Serve-o-tray is a folding adjustable table designed to mount between the driver and passenger seats of a vehicle, and hold food, drinks, etc. As depicted, the Serv-o-tray is secured to the center console with an adhesive pad. The table is mounted on a swiveling, articulated, lockable arm that is composed of two horizontal and two vertical tubular support members. The Serv-o-tray is made of injection molded plastic and is capable of supporting up to 20 pounds, including a laptop computer. You explain that your product is intended to be used while the vehicle is stationary or moving.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . . (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that

2

retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the Serv-o-tray, it appears that this product would be an accessory and thus an item of motor vehicle equipment. Based on our understanding of the product, it appears that a substantial portion of the expected use of the Serv-o-tray relates to motor vehicle operation, by allowing the occupants to eat while operating the car. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While the Serv-o-tray is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that you or NHTSA determines that the product contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

This agency is very concerned about the safety implications of the Serv-o-tray, especially if it is swiveled in front of the occupants in an air bag-equipped vehicle. Under the provisions of FMVSS No. 208, "Occupant Crash Protection," all new cars-and trucks must be equipped with a driver side and passenger side air bag by September 1, 1998. Manufacturers are already producing ever increasing numbers of air bag-equipped cars and trucks. The enclosed document entitled "Sudden Impact" describes the speed with which an air bag deploys. Should the Serv-o-tray be installed in an air bag-equipped vehicle, the occupants could be at risk of injury or death from the interaction of the deploying air bag and the Serv-o-tray or its contents. To protect the occupant, this agency will require that every new vehicle with an air bag be provided with a caution label that states, among other things, "TO AVOID SERIOUS INJURY . . . Do not place any objects over the air bag or between the air bag and yourself." As you can see, the installation of a Serv-o-tray could be contrary to this warning.

There are other potential safety problems associated with the Serv-o-tray. Even without being propelled by an air bag, the Serv-o-tray or its contents could impact the occupant's head,

3

abdomen or lower extremities during a collision. It also seems possible that the Serv-o-tray could interfere with the driver's use of the vehicle's transmission shift lever in an emergency situation. We ask that you consider these and all possible safety impacts of the Serv-o-tray.

If the Serv-o-tray were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle, with the Serv-o-tray installed, complies with all FMVSS's. Among the FMVSS's that might be affected by the Serv-o-tray installation are Standard No. 201, "Occupant Protection in Interior Impact" (copy enclosed), and Standard No. 208.

A commercial business that installs the Serv-o-tray would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397 (a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle . . . in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your product if the Serv-o-tray renders inoperative the vehicle's compliance with the FMVSS's. For instance, installing the Serv-o-tray in front of the driver or passenger could degrade the performance of an air bag or the seat belts in the vehicle. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $ 1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the Serv-o-tray in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so you might wish to consult State regulations to see whether your product would be permitted.

4

I hope this information is helpful. I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

Sincerely

Enclosure

ID: nht87-1.69

TYPE: INTERPRETATION-NHTSA

DATE: 04/22/87

FROM: AUTHOR UNAVAILABLE; SIGNATURE UNAVAILABLE; NHTSA

TO: T. Chikada

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. T. Chikada Manager, Automotive Lighting Engineering Control Dept. Stanley Electric Co., Ltd. 2-9-13, Nakemeguro, Meguro-ku Tokyo 153, Japan

Dear Mr. Chikada:

This is in reply to your letter of March 13, 1987, with respect to the mounting height of driving lamps and front fog lamps. Noting that these lamps are not equipment required by Federal Motor Vehicle Safety Standard No. 108, you have asked whether they need to be mounted within the range of height which the standard prescribes for headlamps, or may they be mounted, for example, at a height lower than 22 inches such as in the front bumper.

Any lamp that is not required by Standard No. 108 may be added to a motor vehicle and located wherever it appears suitable, provided that the lamp at its location does not impair the effectiveness of lighting equipment required by the standard. Headlamps , parking lamps, and turn signal lamps are the lighting equipment required by Standard No. 108 on the front of a passenger car, and any other four-wheeled vehicle of less than 80 inches overall width. Although Standard No. 108 imposes a minimum mounting height of 22 inches on headlamps, it allows parking lamps and turn signal lamps to be mounted as low as 15 inches above the road surface, which means that they could be mounted in the front bumper, or otherwise close to the mounting location of fog lamps and driving lamps. Therefore, compliance with paragraph S4.1.3 of Standard No. 108 would require a manufacturer of a vehicle equipped with fog and driving lamps to ensure that they do not impair the effectiveness of the headlamps, turn signal lamps, and parking lamps.

Because fog lamps and driving lamps are not covered by Standard No. 108, the individual States may have their own restrictions on the mounting height of these lamps. We regret that we are unable to advise you on these laws. However, the American Associat ion of Motor Vehicle Administrator (AAMVA), 1201 Connecticut Ave., N.W., Washington, D.C., may be able to advise you.

Sincerely,

Erika Z. Jones Chief Counsel

Ms. Erika Z. Jones Chief Counsel Department of Transportation National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590 U.S.A.

Dear Ms. Jones,

Re : Mounting height of auxiliary driving lamps and front fog lamps

We have a question on mounting height of driving lamps and front fog lamps.

Do they need to be mounted within the range of height which is required for headlamps in FMVSS No. 108?

Although they help the function of headlamps, they are not required lighting equipments in FMVSS No. 108.

So we understand that they can be mounted in the lower position than 22 inches, the lower required height of headlamps; for example, into the front bumper, the height of which is less than 22 inches.

We would like to have your confirmation on this matter. We are looking forward to your reply.

Yours sincerely,

Stanley Electric Co, Ltd.

T. Chikada Manager, Automotive Lighting Engineering Control Dept.

ID: nht93-6.50

DATE: September 29, 1993

FROM: Dennis G. Moore -- President, Sierra Products Inc.

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: FMVSS #108 INTERPRETATION REQUEST

ATTACHMT: Attached to letter dated 11/16/93 from John Womack to Dennis G. Moore (A41; Std. 108)

TEXT:

I am requesting an Interpretation of the term "at the same height" used in FMVSS #108 when referring to the mounting position of the three I.D. Lights required on Vehicles over 80" in width.

At least on two occasions in the past 20+ years, NHTSA has allowed the slight misalignment of I.D. lights because of "Practical" circumstances. I didn't copy these cases from the Federal Register or from NHTSA's Docket Files so unfortunately I haven't them to refer to.

I'm requesting copies of these Interpretative allowances or better yet, an entirely new Interpretation hopefully allowing the "Practical Misalignment" of I.D. lights used specifically on Boat Trailers.

We are trying to improve the widespread visibility (conspicuousness) and breakage problems associated with mounting "Sizeable" yet Submersible I.D. Lights on a Boat Trailer's rear cross member. To do this, we are offering an I.D. Light Bar that is slightly bendable which corrects the problems outlined in the sketches below.

When slightly staggered, the Vulnerability and Covering problems shown in the sketches are eliminated yet still guaranteeing a protected, longer lasting yet Conspicuous I.D. Light Cluster.

"Conspicuous" is the requirement term used in Section S2. "PURPOSE" of FMVSS #108 and I believe represents the original objective for mandating 3 I.D. Lights. The "Conspicuous" objective is better accomplished even if the three lights are allowed to be somewhat staggered. Also, safety is better served when these lights are protected from damage and/or from being knocked off.

It seems to us that "at the same height" could be defined as where the Top of the middle light is no higher than the Bottoms of the Outboard Lights... or where at least one portion of the three lights are "at the same height".

We hope you concur with our interpretation of this term so that this safety improvement is allowed to be made on Boat Trailers.

TYPICAL BOAT TRAILER I.D. MOUNT AREA Problem 1: Typical Roller or "AT THE SAME HEIGHT" Protective Pad Requirement makes OUTBOARD LIGHTS hang below the Frame Typical V making them "VULNERABLE" to Shaped Cross Frame being DAMAGED or KNOCKED OFF

Typical Roller or Problem 2: Protective Pad "AT THE SAME HEIGHT" Requirement Typical V also encourages the "COVERING" of Shaped Cross Frame the MIDDLE LIGHT

Solution: Typical Roller or ALLOWING SLIGHT STAGGERING Protective Pad yields a PROTECTED yet Typical V "CONSPICUOUS" 3 I.D. Shaped Cross Frame Light Cluster

I would appreciate a response as soon as possible.

ID: nht93-2.35

DATE: March 30, 1993

FROM: Dann T. Deaver -- President, Origins International Corporation

TO: Taylor Vinson -- Office of Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-23-93 from John Womack to Dann T. Deaver (A41; VSA 102(3)); Also attached to letter dated 12-3-91 from Paul Jackson Rice to Matthew J. Plache; Also attached to letter dated 10-31-88 from Erika Z. Jones (Signature by Stephen P. Wood) to Hiroshi Kato; Also attached to letter dated 4-16-85 from Jeffrey R. Miller to Alexander E. Nagy

TEXT: At your request during our telephone conversation today, the following is a description of the physical characteristics and intended use of an electric vehicle which my company has been commissioned to develop.

GENERAL DATA

LENGTH - 107" HEIGHT - 61" BODY WIDTH - 58" WIDTH WITH MIRRORS - 71"

WEIGHT - 1050 LBS.

POWER - 48V SERIES DC, ELECTRIC SPEED RANGE: 1 25 MPH MAX.

MARKET USE

This vehicle will be marketed as a closed community vehicle for retirement communities, closed club grounds, on site/off road/construction vehicles, theme parks, resorts, etc. The vehicle is not to be marketed as useable on public thoroughfares and/or highways. The tires are of a high profile design capable of being used on golf courses, and golf bag wells and golf accessories are designed into the vehicle.

Where many golf cars today are used in the above applications, our vehicle provides better handling, greater load carrying capability, higher speed, longer range, better weather protection, and a very unique appearance and package.

As we discussed today, it is important that we are made aware of any federal safety regulations which may apply to vehicles of the above description and use. Concurrently we are exploring similar state vehicle safety/equipment requirements.

We would appreciate a letter, addressed to me at the address below, stating your Department's position on this matter.

I appreciate your attention and consideration.

ID: 3296yy

William R. Willen, Esq.
Managing Counsel
Product Legal Group
American Honda Motor Co., Inc.
1919 Torrance Boulevard
Torrance, California 90501-2746

Dear Mr. Willen:

This responds to Honda's request for an interpretation of Federal Motor Vehicle Safety Standard No. 123, Motorcycle controls and displays. You stated that Honda is developing a braking system for motorcycles that would offer full proportioning front and rear when utilizing either the front hand control, or the rear control. You asked whether such a system would be permitted by the standard, particularly in light of section S5.2.1. As discussed below, such a braking system would be permissible under Standard No. 123.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts set forth in your letter.

S5.2.1, Control location and operation, includes the following language:

If a motorcycle is equipped with self-proportioning or antilock braking devices utilizing a single control for front and rear brakes, the control shall be located and operable in the same manner as a rear brake control.

Table 1 of Standard No. 123 provides that a rear wheel brake control must be a right foot control and must depress to engage. (Table 1 also includes an additional option that is not necessary to address in this letter.)

Since Honda's motorcycle would be equipped with a self-proportioning device utilizing a single control for front and rear brakes, it would be subject to this requirement. If Honda's "rear foot control" is one that is operated by the right foot and must be depressed to be engaged, that control would satisfy S5.2.1.

It is our interpretation that so long as one control meets the specified requirements for location and operation, additional controls serving the same purpose may be provided voluntarily by the manufacturer and need not meet those requirements. I note that this view is similar to a position taken in an April 26, 1983 interpretation letter to an addressee whose identity has been withheld for reasons of confidentiality. In that letter, the agency stated, in the context of discussing S5.2.1, that "[u]se of ... a self-proportioning device does not preclude additional brake actuation devices." I am, for your information, enclosing a copy of that letter. In the situation at issue, we would consider the front hand control on Honda's design to be an "additional brake actuation device," and therefore, not precluded by Standard No. 123.

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

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:123 d:1/28/92

ID: nht92-9.36

DATE: January 28, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA; Signature by Stephen P. Wood

TO: William R. Willen, Esq. -- Managing Counsel, Product Legal Group, American Honda Motor Co., Inc.

TITLE: None

ATTACHMT: Attached to letter dated 12/16/91 from William R. Willen to Paul Jackson Rice (OCC 6833)

TEXT:

This responds to Honda's request for an interpretation of Federal Motor Vehicle Safety Standard No. 123, Motorcycle controls and displays. You stated that Honda is developing a braking system for motorcycles that would offer full proportioning front and rear when utilizing either the front hand control, or the rear control. You asked whether such a system would be permitted by the standard, particularly in light of section S5.2.1. As discussed below, such a braking system would be permissible under Standard No. 123.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts set forth in your letter.

S5.2.1, Control location and operation, includes the following language:

If a motorcycle is equipped with self-proportioning or antilock braking devices utilizing a single control for front and rear brakes, the control shall be located and operable in the same manner as a rear brake control.

Table 1 of Standard No. 123 provides that a rear wheel brake control must be a right foot control and must depress to engage. (Table 1 also includes an additional option that is not necessary to address in this letter.)

Since Honda's motorcycle would be equipped with a self-proportioning device utilizing a single control for front and rear brakes, it would be subject to this requirement. If Honda's "rear foot control" is one that is operated by the right foot and must be depressed to be engaged, that control would satisfy S5.2.1.

It is our interpretation that so long as one control meets the specified requirements for location and operation, additional controls serving the same purpose may be provided voluntarily by the manufacturer and need not meet those requirements. I note that this view is similar to a position taken in an April 26, 1983 interpretation letter to an addressee whose identity has been withheld for reasons of confidentiality. In that letter, the agency stated, in the context of discussing S5.2.1, that

"(u)se of ... a self-proportioning device does not preclude additional brake actuation devices." I am, for your information, enclosing a copy of that letter. In the situation at issue, we would consider the front hand control on Honda's design to be an "additional brake actuation device," and therefore, not precluded by Standard No. 123.

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

ID: nht91-5.39

DATE: September 9, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Alonzo Bendolph

TITLE: None

ATTACHMT: Attached to letter dated 8-9-91 from Alonzo Bendolph to Legal Counsel, NHTSA (OCC 6346)

TEXT:

This responds to your letter of August 9, 1991 concerning possible regulations governing the placement of personalized stickers in the upper portion of the front windshield and rear window of a vehicle. You were told by the New York State Department of Motor Vehicles that all signs, other than inspection and registration stickers, placed in the front windshield and rear window are illegal. You asked the position of this agency concerning the issue.

Some background information on Federal motor vehicle safety laws and regulations may be helpful. The National Highway Traffic Safety Administration (NHTSA) is authorized, under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., the Safety Act), to issue safety standards applicable to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. In addition, the modification of a vehicle, after that vehicle has been sold to a consumer, could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides, in part, that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. . . . However, the above provisions of Federal law do not affect either the operation of vehicles by the owners of those vehicles or modifications to vehicles by their owners. The individual States have the authority to regulate the operation, use, and modification of vehicles by their owners. In the case your describe, the State of New York has exercised its authority to restrict the display of signs on vehicle windshields and rear windows. The wisdom and fairness of those restrictions is something to be decided by the State of New York, not the Federal government.

I hope that this information is useful. If you have any further questions, please contact John Rigby of this office at 202-366-2992.

ID: 2659y

Marc J. Fink, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Washington, D.C. 20037-1194

Dear Mr. Fink:

This responds to your letter of May 25, l990, to Robert F. Hellmuth, Director, Office of Vehicle Safety Compliance, on behalf of your client, John A. Rosatti. Mr. Rosatti would like to import a nonconforming Porsche 959 into the United States as a "demonstration" car. He intends to promote business by displaying it in his automobile dealerships and does not intend to drive it on the roads. Specifically, he would like to display it in his Acura dealership to build showroom traffic. He has offered to remove the engine, and to declare that, if the car is transferred by sale or inheritance, "the new owner will be bound to keep the engine and body of the car separate."

In support of your request, you argue that entry into the United States is permissible pursuant to 49 CFR 591.5(j), which implements l5 U.S.C. 1397(j). This section provides that the agency may exempt any person from the prohibitions in sections 1397(a)(1)(A) and (c)(1) "upon such terms and conditions as [NHTSA] may find necessary solely for the purpose of research, investigations, studies, demonstrations or training, or competitive racing events."

We are unable to agree with your interpretation and arguments. The Imported Vehicle Safety Compliance Act of l988, which added l5 U.S.C. 1397(c) through (j), responded to a report of the General Accounting Office which indicated that a large number of nonconforming vehicles were being imported into the United States without sufficient assurances or evidence that they were being brought into compliance with all applicable Federal safety standards. The provisions that were enacted by Congress represent a significant, and, we believe, restrictive change from the regulations previously in force, and a clear directive to the agency to proceed in accordance with the new statutory language.

The agency's previous position is represented by language that you cite in the preamble of the final rule (which you term Supplemental Information) adopting Part 591:

"Importation for this class of noncomplying motor vehicles [i.e., demonstration vehicles] has been permitted pursuant to the assumption that motor vehicle safety would not be affected by the temporary importation of noncomplying motor vehicles not generally used on the public roads, and whose appearance on them would be limited." (54 FR 40076).

Under the previous regulation, vehicles could be imported for purposes of "show, test, experiment, competition, repair, or alterations" (19 CFR 12.80(b)(l)(vii)). You will note that, contrary to your parenthetical statement, the demonstration exception did not exist in the old regulation. The most appropriate exception in the old regulation for what your client contemplates was the one for "show." Under 591.5(j) of the new regulation, which follows the language of the statute, a vehicle may be imported for the purposes outlined in the second paragraph of this letter, none of which include "show." We interpreted "show" to mean "to cause to be seen," such as in a static display. We do not interpret the word "demonstrations" as encompassing static display; a vehicle is "demonstrated" to a prospective purchaser, for example, by allowing him or her to drive it on the public roads. However, with respect to the new regulation, we have interpreted the word "demonstration" only in the context of allowing importation of nonconforming vehicles by registered importers who wish to prove, or demonstrate, that the vehicle is capable of conformance modification under one of the provisions of 1397(c)(3)(A)(i). This, of course, is not the situation with your client, and we decline to provide the interpretation you suggest, as we do not believe that an importation under that circumstance accords with the intent of Congress.

Sincerely,

Paul Jackson Rice Chief Counsel ref:59l d:9/20/90

ID: nht91-3.16

DATE: April 10, 1991

FROM: Julia D. Darlow -- Dickinson, Wright, Moon, Van Dusen & Freeman

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5-1-91 from Paul Jackson Rice to Julia D. Darlow (A37; VSA Sec. 108(b); Sec. 1397(a)(1)(A))

TEXT:

This letter requests your advice concerning a course of action that a client of this firm proposes with respect to Section 1397 of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Act"), 15 U.S.C. Section 1397.

Recently, we discussed our client's proposed course of action on a hypothetical basis with Mr. Taylor Vincent of NHTSA and were encouraged by Mr. Vincent's preliminary analysis of the propriety of this course of conduct. Mr. Vincent advised that formal confirmation of NHTSA's position could be sought from the Chief Counsel. Accordingly, we ask that you provide us with a ruling on the propriety of the following course of conduct under Section 1397.

Our client (the "Importer") imports certain automotive after-market equipment ("Products") that does not meet certain applicable United States federal motor vehicle safety standards. The Importer currently exports these products directly to Canada. The products are warehoused in the United States prior to delivery to Canada but are not resold in the United States.

A potential customer of the Importer located in the United States wishes to purchase Products from the Importer and itself export those Products to Canada. The customer is willing to enter into a written contract with Importer pursuant to which it promises not to sell the Products in the United States but only to export them to Canada. The Products and the outside of the containers in which they are shipped to the customer will be labeled as intended solely for export, as required by 15 U.S.C. Section 1397(b)(5). Pursuant to the written agreement, the customer will provide confirmation of export of the Products to Importer.

To the best knowledge of Importer, the proposed course of action involves no ruse or subterfuge to avoid any requirement imposed by the Act. To the contrary, our client intends that the Products be imported and sold solely for export and has no reason to doubt its customer's intentions.

As you know, Section 1397(a)(1)(A) prohibits any person from manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce or importing into the United States any item of motor vehicle equipment that is not in conformity with applicable federal motor vehicle safety standards, except as provided in subsection (b). Section 1397(b)(5) provides that the prohibition shall not apply to an item of motor vehicle equipment that is intended solely for export and so labeled or tagged on the item itself and on the outside of the container in which it is exported.

Based on the facts as outlined above, we believe that the Importer's proposed sale of the Products to its customer would not be a violation of Section 1397(a)(1)(A) of the Act, because it would conform to the exception set forth in Section 1397(b)(5).

We respectfully request that you issue your written opinion that the Importer's proposed importation and sale of motor vehicles to its customer as outlined in this letter will not violate Section 1397(a)(1)(A).

If you require further information in connection with this request, please let us know as soon as possible. Because our client hopes to implement its proposed arrangements as soon as possible, your early response would be particularly appreciated.