ID: nht87-2.56

TYPE: INTERPRETATION-NHTSA

DATE: 07/22/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Allan Fogel

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Allan Fogel New York City Office of the Comptroller Bureau of Management Audit 161 William Street New York, NY 10038

Dear Mr. Fogel:

This responds to your March 6, 1987 letter to my office asking whether we consider a "Mobile Instructional Unit" (MIU) to be a "school bus." You wish to know whether Federal school bus safety standards apply to such a vehicle. You have asked, in addition , whether the Federal motor vehicle safety standard on hydraulic brakes applies to an MIU. It is my opinion that the MIU is not a school bus under the applicable Federal law and regulations and is thus not required to meet the school bus standards. If th e MIU is equipped with air brakes, it is not subject to the hydraulic brake standard.

The background information you provide explains that the MIU is a self-propelled unit built on a new or used school bus chassis. MIU's are "completely self-contained with all furnishings, (including desks for 10 pupils)." When an MIU is built with a used chassis, the Board of Education's contractor guts the interior of the bus and constructs a classroom facility within the shell. According to your letter, the MIU's are never used to transport pupils: "The empty vehicle is driven to the site by the contr actor where it is parked and then pupils and teacher enter the vehicle. At the end of the day after instruction, the pupils and teacher disembark and the empty vehicle is driven back to the garage by the contractor."

Our agency has the authority under the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381-1431) to issue safety standards for new motor vehicles. We ave issued several standards which apply to School buses, a class of vehicle defined b y the Act as "likely to be significantly used for the purpose of transporting primary, preprimary or secondary school students to or from schools or events related to such schools." (l5 U.S.C. 1391(14)) The bus from which an MIU is built would have had t o comply with the school bus standards at the time of its original manufacture. As long as a bus continues to be used as a school bus, the law does not allow a contractor to modify it in a way that takes it out of compliance with the school bus standards . (l5 U.S.C.

1397(a)(2)(A) However, if the bus is modified so that it will no longer be used to transport students, it ceases to be a school bus and does not have to continue to meet the standards applicable exclusively to school buses. In the case of the MIU, it see ms clear that the vehicle would no longer be suitable for transporting students to or from school. The MIU would thus not have to meet the school bus standards.

Although the school bus standards would not apply, the MIU would;d continue to be a motor vehicle and would continue to be subject to other standards under the Act. You have asked about the applicability of Standard No. 105, hydraulic Brakes. Since the b uses from which the MIU's are built were originally equipped with air brakes, the hydraulic brake standard would not apply to them. However, there is a separate standard for air braked vehicles, Standard No. 121, a copy of which I have enclosed. If the c ontractor built am MIU in a way that impaired the air brake system, he or she might be in violation of the Act. The contractor would also have to ensure that several other regulated safety systems -- the windshield wipers, the Driver's safety belt, etc. -- remained operative.

MIU's built with new chassis also fall outside the ambit of the Safety Act's school bus definition. Since they are not school buses under Federal law, the MIU's Are not subject to our school bus safety standards. However, the MIU's would be subject to ot her standards, including Standard No. 121 for air braked vehicles. The contractor should be able to inform you of the compliance of the vehicles with applicable Federal safety standards.

Since you may be interested in reviewing the standards which apply to vehicles such as the MIU, I have enclosed an information sheet that describes how you can obtain copies of our safety standards and other regulations.

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

Sincerely, Erika Z. Jones Chief Counsel Enclosures

SEE HARD COPY FOR GRAPHIC INFORMATION)

April 24 1987 Mr. Stephen Oesch Chief Counsels Office National Highway Safety and Transportation Administration 400 - 7th Street, SW - Room 5219 Washington, D.C. 20590

Dear Mr. Oesch: Pursuant to my letter of March 6, 1987 and our recent telephone conversation, I am enclosing a brochure depicting what a mobil classroom vehicle looks like.

Although the vehicle shown here was not adopted by the New York City Board of Education, the one actually in service has the same function and a similar interior layout. The only difference being that the vehicle in the brochure was remanufactured from a used school bus, while the vehicles presently employed by the Board of Education have a body which was built from scratch and placed on a 1986 school bus chassis.

Whether or not this type of vehicle can actually be considered a school bus is an essential aspect of my study and therefore I would appreciate such a determination from your office as soon as possible. Many thanks for your cooperation.

Sincerely, Allan Fogel Enclosure

Erika Jones Chief Counsel's Office National Highway Traffic Safety Administration 400 7th Street SW Washington, DC 20590

Dear Ms. Jones:

On June 3, 1986, the New York City Board of Education announced a plan to provide services to Chapter 1 sectarian school students in September, 1986. The plan provides that the sectarian school children in the Program will receive services of a nearby pu blic school. where there is no space in the public school, MIU's (Mobile instructional Units) will be leased to serve the sectarian school children. This plan was developed as a result of the July 1985 United States Supreme Court decision in Aquiler vs. Felton.

In order to carry out this plan, the New York City Board of Education prepared and advertised specifications for the leasing of MIU's, including drivers. The MlU specifications call for a self-propelled mobile instructional unit completely self-contained with all furnishings, (including desks for 10 pupils), installed generator, air-conditioning, heating and ventilating system. The specifications also call for a chassis which shall be 1977 or newer. The finished vehicle although it has a school chassis, has a custom built non-school bus body. These vehicles have been built and are now serving the New York City Board of Education.

The Comptroller's Office of the City or New York is conducting an audit of this contract as to the quality of construction and the safety regulations that apply to the vehicle. We are at an impasse however, because we are not sure if this vehicle can act ually be called a school bus and if the Federal Regulations of 1977 do in-fact apply.

The term Mobile Instructional Unit is actually a misnomer since pupils are not transported at all. The Empty vehicle is driven to the site by the contractor where it is parked and then pupils and teacher enter the vehicle. At the end of the day after Ins truction, the pupils and teacher disembark and the empty vehicle is driven back to the garage by the contractor. We were informed by thy New York State Department of Transportation that these vehicles are not certified and inspected every 6 months as are school buses that transport children.

In consideration of the above, the New Pork City Comptroller's Office would like your office to provide a ruling as to whether or not this type of vehicle can actually be considered a school bus, and whether or not any of the 1977 Federal safety standard s (DOT HS 805 674 revised April 1985) apply. We are specifically interested in Standard No. 105 which deals with hydraulic brakes and requires a split system. The vehicles in question have air brakes, so we would also like to know if the revised safety r egulations apply to any way to air brakes as well.

Thank you very much for your assistance.

Very truly yours, Allan Fogel field Supervisor (212) 566-6075

ID: nht87-2.91

TYPE: INTERPRETATION-NHTSA

DATE: 09/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: L. M. Short -- Chief, Enforcement Services Division, Dept. of California Highway Patrol

TITLE: FMVSS INTERPRETATION

TEXT:

L.M. Short, Chief Enforcement Services Division Department of California Highway Patrol P.O. Box 898 Sacramento, CA 95804

This responds to your letter to our office concerning our certification requirements for manufacturers of school buses. I apologize for the delay in responding to your inquiry.

According to your letter, California's school bus regulations require vehicles considered as "school buses" under state law to be certified as "school buses" under Federal law. Vehicles considered as "school buses" under state law include multipurpose pa ssenger vehicles (MPV's) used to carry two or more handicapped pupils confined to wheelchairs. Consequently, under California's school bus regulations, an MPV cannot be used to carry handicapped students unless it is certified as meeting our school bus s afety standards. Because manufacturers have informed you that NHTSA prohibits them from certifying an MPV as a school bus, you request that we remove this restriction by permitting the school bus certification for MPV's.

Your understanding is correct that our regulations prohibit MPV's to be certified as "school buses." Under the National Traffic and Motor Vehicle Safety Act and NHTSA regulations, manufacturers classify their new motor vehicles in accordance with the def initions we issued for our motor vehicle safety standards (49 CFR Part 571.31 and certify that their vehicles meet all Federal safety standards applicable to the vehicle type. Under the definitions of Part 571.3, the issue of seating capacity makes the s chool bus and MPV definitions mutually exclusive. The passenger seating capacity of an MPV must be 9 or less, while that of a school bus must be 10 or more. A manufacturer cannot certify a vehicle as a "school bus" in compliance with Federal school bus s afety standards unless the vehicle is of a size that puts it within the school bus category. Adopting your suggestion that we permit some MPV's to be certified as School buses could not be accomplished without changing either our "School bus" definition, our regulations for certifying vehicles, or the application of our school bus safety standards. As explained below, we must decline your implicit request to make these changes because of a statutory restriction and because we believe their adoption is n ot warranted by a safety need.

We are precluded from adopting the suggestion that we expand our school bus definition to include some MPV' s because our" school bus" definition is governed by legislation enacted by Congress. In the Motor Vehicle and Schoolbus Safety Amendments of 1974 , Congress added a "school bus" definition to the National Traffic and Motor Vehicle Safety Act which is based on the design and intended use of a "bus." Congress directed that upgraded school bus safety requirements be applied to buses that carry more t han 10 passengers and that are determined by NHTSA likely to be significantly used for the purpose of school transportation.

Your second implicit suggestion is that we change our certification regulations to permit manufacturers to certify a vehicle as both an "MPV" and a "school bus." Such a change would not be practical. A manufacturer's certification of a vehicle is a decla ration that the vehicle is manufactured to comply with all Federal motor vehicle safety standards applicable to the vehicle type. Since our performance requirements for MPV's are not identical to those for school buses, an MPV cannot be manufactured to m eet the standards applicable to both vehicle types.

The third suggestion implicit in your letter is that a dual certification can be effectuated by extending the application of our school bus safety standards to some MPV's. We are not aware of any data suggesting a safety reel for such a change. MPV's alr eady have their own safety standards to ensure adequate levels of safety performance for those vehicles. Because of those standards, we do not prohibit the sale of MPV's to transport school children. Further, we do not believe the change you suggest is n ecessary to address the issue raised in your letter. Federal law does not prohibit manufacturers from voluntarily manufacturing MPV's to meet school bus standards on aspects of performance that do not conflict with MPV standards, such as emergency exits and joint strength. California may thus specify performance standards now applicable to school buses for MPV's used to transport handicapped children, provided that the MPV's can continue to comply with MPV standards. Of course, the vehicles would still be certified only as MPV'S.

In your letter, you mentioned that you examined the definitions set forth in Highway Safety Program Standard No. 17, Pupil Transportation Safety, for "Type I" and "Type II" school vehicles. As you know, Standard No. 17 was issued under the Highway Safety Act as a standard for State highway safety programs. Since the "standard" consists of our recommendations for the operation of school vehicles, the Type I and Type II School Vehicle definitions found in Standard No. 17 are relevant for determining the o perational recommendations applicable to different school vehicles. Those definitions do not, however, change the Vehicle Safety Act's definition of a school bus or the Act's requirements for a manufacturer to certify school buses to all applicable Feder al motor vehicle safety standards.

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

Sincerely,

Erika Z. Jones Chief Counsel

Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, DC 20590

The California Highway Patrol has been informed by a school bus manufacturer that a new vehicle originally designed to accommodate 12 seating positions but reduced to a seating capacity of ten or less must be certified as a multipurpose vehicle in accord ance with Federal standards. Mr. George Shifflet of the National Highway Traffic Safety Administration (NHTSA) verified this and added that NHTSA does not recognize a vehicle with seating for 10 or less persons as a school bus.

The school bus definition found in Title 49, Code of Federal Regulations (CFR) Part 571, Section 3. does not specify a minimum number of students to be transported.

Highway Safety Program Manual No. 17, Pupil Transportation Safety. United States Department of Transportation, NHTSA was searched for relevant material. This document. which is a guide for all states to use in developing pupil transportation programs, st ates that a "Type II school vehicle -- is any motor vehicle used to carry 16 or less pupils to or from school. The minimum number of pupils is not specified and we note that the word "vehicle" is used rather than "bus".

The California school bus definition is identical to the NHTSA definition of a bus in that both specify a vehicle designed for "more than 10 persons" However. California Vehicle Code Section 545 (copy enclosed) also provides that a motor vehicle that tra nsports two or more handicapped pupils confined to a wheelchair is a school bus. Many of these special buses will transport some pupils "confined to wheelchairs and some ambulatory pupils for a total of less than 10. Even though this seating configuratio n does not meet the definition of a bus, we feel that the school pupils being transported should always be provided with all the safety features provided by Federal and State Law for school buses. Chief Counsel $5 September 16, 1986

There are school bus manufacturers that are willing to certify that a motor vehicle with a seating capacity for 10 or less meets school bus standards but they are prohibited from this certification due to the requirements of Title 49, CFR. Some school bu s operators have been unable to purchase small four-wheel-drive vehicles for use as school buses to operate in snow and rough terrain. They have been forced to purchase larger four-wheel-drive buses in order to obtain the school bus certification label. A smaller four-wheel-drive vehicle may be more appropriate in rural areas under certain driving conditions.

In view of the foregoing information, we respectfully request that the merits of this case be studied and that a decision be made to permit a bus manufacturer to certify a vehicle designed to seat 10 persons or less as a school bus. Perhaps a new vehicle definition or classification is needed, such as "special school bus". If this request is granted, we feel it would be a positive step to further ensure the safe transportation of school pupils. Very truly yours,

L. M. SHORT, Chief Enforcement Services Division

Enclosure

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

ID: nht76-2.32

DATE: 07/23/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: R. H. Willcox, Esq.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of June 16, 1976, asking several questions with respect to the applicability of 15 USC 1397(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act and Federal Motor Vehicle Safety Standard No. 108 (49 CFR 571.108) to a product manufactured by your client, the W.B. Marvin Manufacturing Company. This product is "a screen which fits on the front part of the automobile and protects the radiator, headlamps and other lower parts of the car" from bugs.

W.B. Marvin would not be in violation of either the Act or Standard No. 108 by manufacturing and selling these screens. Such liability as may exist centers on the installation of them. Standard No. 108 establishes requirements for lighting equipment on new motor vehicles, and for replacement equipment. One of the requirements of SAE Standard J580a, Sealed Beam Headlamp, June 1966, incorporated by reference in Standard No. 108, is that "a headlamp, when in use, shall not have any styling or other feature, such as a glass cover or grille in front of the lens." Since the screen is positioned in front of the headlamps it would be an "other feature" of the type intended to be prohibited by the standard if, as appears likely, it affects compliance with headlamp photometrics (SAE Standard J579) or headlamp aim (SAE Standard J580). If installation results in a noncompliance, the screen could not, therefore, be legally installed by a vehicle manufacturer, distributor, or dealer as original equipment on a motor vehicle.

As for replacement equipment, under Section 1397 (a)(2)(A) of the Act an automobile owner may himself modify his vehicle in any manner he chooses, but modifications performed at his request by others may not "render inoperative in whole or part, any device or element of design installed on . . . a motor vehicle . . . in compliance with an applicable Federal motor vehicle safety standard." If installation of the screen affects compliance with headlamp photometrics or other requirements, then it would appear to "render inoperative" a lighting device installed in accordance with a Federal motor vehicle safety standard, within the meaning of Section 1397(a)(2)(A). Installation by the auto service center of the retailer would therefore be prohibited, since such a facility is deemed a "motor vehicle repair business."

There are no Federal motor vehicle safety standards that directly apply to the screen as an item of motor vehicle equipment, nor do I know of any other Federal regulation affecting it.

I hope this letter is responsive to your questions.

YOURS TRULY,

CHESTER, HOFFMAN, PARK, WILLCOX & ROSE June 16, 1976

National Highway Traffic Safety Administration

Attention: Frank Berndt Acting Chief Counsel

Re: W. B. Marvin Manufacturing Co.

Our firm represents The W. B. Marvin Manufacturing Co. of Urbana, Ohio. They have contacted us concerning a product they wish to manufacture for use on automobiles which may involve the application of the Federal Motor Vehicle Safety Standards, particularly Standard 108 relating to headlamps. I personally have talked with Mr. Vinson of your office concerning the problem and he has advised me to write to you requesting an opinion concerning this situation. There is also a question as to the applicability of Section 108 of the National Traffic and Motor Vehicles Safety Act as amended in 1974.

The residents of south Florida have been bothered for years by the "lovebug" problem. These bugs appear in large numbers and accumulate on the headlamps and windshields and other parts of the cars driven on the south Florida highways. The W. B. Marvin Manufacturing Co. has designed a screen which fits on the front part of the automobile and protects the radiator, headlamps and other lower parts of the car from these bugs. At the same time, it is designed to direct the air flow in such a fashion that the bugs are diverted over the windshield so that they do not have an opportunity to come in contact with the windshield at all. This screen has been tested in Florida and had proved to be very successful. Pictures of the screen are enclosed for your information. The screen is designed for easy installation and removal. Tubes are attached to the front bumper of the car. The screen is attached to the car by sliding tubes affixed to the screen into the tubes affixed to the front bumper. Because of this design, the screen can be assembled relatively simply by the car owner or any auto service center. The car owner by himself may then mount the screen on the front of the car or remove it as required.

Without the screen, the bugs are plastered against the headlamps, thus affecting the amount of light coming from the headlamps. With the screen, the bugs will be on the screen, which is easily cleaned, rather than the headlamps. However, there is no question that when installed the screen will reduce the amount of light produced by the headlamps on to the roadway and this raises the question as to the applicability of the Federal Motor Vehicle Safety Standards and Section 108 of the National Traffic and Motor Vehicle Safety Act.

It is W. B. Marvin Manufacturing Company's intention to manufacture this screen and sell it to a retailer such as Sears Roebuck & Co. The retailer would sell the screen directly to the car owner who could either install it himself or have it installed at the retailer's auto service center.

Our client is ready to manufacture this screen and sell it to a retailer or retailers as described above. However, we do not want to advise them to proceed if the manufacturing of the screen or the manner in which the screen is sold and installed in any way violates any applicable Federal laws, rules or regulations. We are therefore requesting your opinion as to the applicability of the Federal Motor Vehicle Safety Standards and Section 108 of the National Traffic and Motor Vehicle Safety Act to the manufacture, sale and installation of this screen. In this regard, we raise the following questions: 1. Do the Federal Motor Vehicle Safety Standards and in particular, Standard 108, apply to this screen as manufactured by The W. B. Marvin Manufacturing Co.?

2. By manufacturing and selling the screen described above, is The W. B. Marvin Manufacturing Co. in violation of the Federal Motor Vehicle Safety Standards and in particular Standard 108?

3. By manufacturing and selling the screen as described above, is The W. B. Marvin Manufacturing Co. in violation of Section 108, Subparagraphs A (1) and A (2) of the National Traffic and Motor Vehicle Safety Act as amended in 1974?

4. Is there any violation of the Federal Motor Vehicle Safety Standards or Section 108 of the National Traffic and Motor Vehicle Safety Act if the screen in question is manufactured by W. B. Marvin Manufacturing Co., sold by them to a retailer such as Sears Roebuck & Co. and sold by the retailer to the automobile owner who installs the screen himself?

5. If the car owner purchases the screen from a retailer and has the screen installed at the retailer's auto service center, is the retailer and/or the manufacturer in violation of Section 108, Subparagraphs A (1) and A (2) of the National Traffic and Motor Vehicle Safety Act as amended in 1974?

6. Does the auto service center of the retailer constitute a "motor vehicle repair business" as used in Section 108, Subparagraphs A (2) (a) of the National Traffic and Motor Vehicle Safety Act?

7. Does the manufacturing, sale and installation of the screen in question come within the meaning of the phrase "render inoperative" as that phrase is used in Section 108, Subparagraph A (2) (a) of the National Traffic and Motor Vehicle Safety Act?

8. To your knowledge, are there any other Federal statutes or regulations which would prevent the manufacturing and sale of this screen?

As indicated before without the use of the screen the bugs will be plastered against the headlamps and windshield of the vehicle, thus affecting the visibility of the driver. With the screen, the bugs will be contained on the screen from which they can be easily removed and will be diverted over the windshield. In view of this, it does not appear to us that the use of the bug screen renders the vehicle less safe than without the screen. Therefore, if it is your opinion that Section 108 of the National Traffic and Motor Vehicle Safety Act is applicable to this situation, we hereby request that you exempt the manufacturer and the retailer from the application of Section 108.

If you need additional information, please call the undersigned and I will provide you with what you need if possible. Thank you for your consideration of this problem.

Roderick H. Willcox

(Graphics omitted)

ID: nht90-2.55

TYPE: INTERPRETATION-NHTSA

DATE: May 29, 1990

FROM: G. Nick Routh -- President, American Energetics

TO: Jere Medlin -- Office of Vehicle Safety Standards, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8-1-90 from J.M. Fish to C. Mack (A35; Std. 205); Also attached to letter dated 5-30-90 from G.N. Routh to C. Mack

TEXT:

We are distributors of solar control window insulation film, selling our product to over 1000 installers across the United States. Over the past six years an increasing percentage of our sales are derived from "auto tint". Currently about 70% of our sa les come from the auto market. Film applied to car windows has become increasingly popular.

Unfortunately several events are putting our livelihood and the livelihoods of our customers in jeopardy. Specifically, the Justice Department has sued a number of film installers in Florida for violation of federal guidelines, at the direction of NHTSA . At the same time, a group of manufacturers in our industry are petitioning NHTSA to revise its guidelines.

We feel that NHTSA, in reviewing the guidelines, and the manufacturers, in petitioning NHTSA, are not heeding some basic points that are key to the argument. We will explain our thoughts here by posing a number of questions.

1. HAS NHTSA SURVEYED THE CONSUMING PUBLIC?

We note that NHTSA, in responding to the original petition of the film manufacturers asking for 35% VLT, cited a number of questions about the safety of film and then asked for commentary from "interested parties". We imagine that the interested parties were law enforcement agencies for the most part who clearly constitute a special interest group. Did NHTSA speak to drivers who have film on their autos?

Did NHTSA survey Florida, Texas or other Sunbelt residents, particularly those of advanced age for whom reduced glare is very important in light of cataracts, glaucoma and the like?

People who are not familar with film inevitably have a jaundiced view of auto tint, seeing it only as black material, not aware of the different light transmission properties available. You would find, if you researched the matter, that consumers vote w ith their dollars where auto tint is concerned and are generally always repeat buyers.

2. WHAT ARE THE RIGHTS OF THE STATES?

Following from the last question, we must note that perhaps 70% of auto tint sales are in the Sunbelt. This is no coincidence. It is bright in these states year around. You would no doubt find that the bulk of

sunglasses are sold in these states. Why can't individual states note the differences between each other by having differing laws that recognize their differences? Clearly, there are areas where states have differing statutes on their books regarding a utomobile accesories and aftermarket add-ons. Specifically, we are speaking of radars, the use of head phones while driving, driving lights, studded snow tires and of course, auto emissions restrictions. Of all these, auto tint stands out as an obvious area where concrete climatological factors strongly support the use of film.

We believe that most states that have written their own laws regarding film, have done so, like Florida, in the firm belief that federal guidelines apply to new car manufacture, not to the aftermarket, where a consumer may choose to customize his car, us ing the installer or mechanic as an agent, as long as state standards are adherred to.

3. WHY ARE SOME LAW ENFORCEMENT OFFICIALS OPPOSED TO FILM?

This is a very interesting question to us. Any auto tint installer will tell you that law enforcement officers number among his customers. Informal discussions with officers reveal that officers approach an auto with film on it as they would any car the y stop - with caution. Film will not hide weapons; a weapon may be held below the window level on any auto. Further, a van with no windows could conceal more than the darkest film.

There is an annual publication issued by the FBI dealing with the deaths of law enforcement personnel in the US at the local, state and federal level. This is the Law Enforcement Officers Killed and Assaulted part of the Uniform Crime Report. The statis tics are organized by the nature of the incident resulting in a death. It is our understanding that a study of the last ten years of these reports, together with a reading of the anecdotal information provided, nowhere points to auto tint being a key fa ctor in the demise of an officer. We hear it often repeated that officers are endangered by film on windows, but concrete evidence is not to be had, we believe.

We do think that auto film is an easy target for ignorance. Police who are not familar with the different levels of VLT will react negatively, envisioning the black material. The vast number of states that have adopted the use of 35% VLT film on the dri ver and passenger windows have all had that film reviewed by their law enforcement officers and they have approved the use of the film.

4. WHAT IS THE HARM OF IT?

There are no federal guidelines that address themselves to the large market for radar detectors, yet this product is clearly designed to assist motorists in evading speeding tickets. Auto tint is not designed to evade the law. Rather it is beneficial t o the user, protecting the car against UV damage, preventing glass shattering in the case of accidents, and reducing glare. To pursue the latter point, why is film suspect and sunglasses not? Sunglasses are normally sold in much darker shades than the window film that is being applied.

Further, there is some argument to the point that film reduces the load on auto air conditioning, particularly those films that are lightly metallized. The conclusion to be drawn here is that film has got to have some benefit in reducing gas consumption . Evidently, we would regulate something beneficial such as film, but not regulate radar detectors.

With regard to highway safety, which is what is the central issue here, there appears to be a great deal of confusion. Statistics show that the accidents and deaths per passenger mile driven have not changed significantly over the last generation while the use of auto film has grown dramatically. This would certainly indicate that films darker than FMVSS 205 would allow, which are allowed by the Sunbelt state statutes, are not contributing to a reduction in safety on our nation's highways.

5. WHY ARE CAR OWNERS ALLOWED TO DO WHAT FILM INSTALLERS ARE NOT?

If the government has determined to regulate film, we are amazed by the evident loophole that exists. From our readings of NHTSA communications, we understand that individual car owners will be permitted to install any film on their own cars, so long as they adhere to state guidelines which are more permissive than current federal quidelines. However, film installers would have to adhere to the more stringent federal guidelines. We would like to know why the installer can't be considered the agent of the car owner? Why is the installer being singled out to discriminate against?

To speak bluntly, this inequity will allow film manufacturers to sell film in the Do-It-Yourself or retall market and bypass the fllm installers who will not be allowed to install the preferred darker films which will now only be available in the DIY mar ket? In the back of our minds we feel some concern that the manufacturers, in petitioning NHTSA are not acting on our behalf. The inequity will close us out but keep them in business and dark film will still be available.

Conclusion:

If NHTSA takes the position that its guidelines preempt state guidelines it fails to recognize clear regional differences and preferences. If NHTSA leaves an inequity for individual car owners to install darker film than installers can, it discriminates unfairly. If NHTSA solicits input from organized lobby groups either pro or con on the issue and fails to speak to individuals who have film on their cars, it is not geting the full picture.

We feel strongly that the states should regulate this issue. If the federal government sees fit to regulate, it should allow film of at least 35% VLT on the driver passenger windows, which is agreeable to the southern states who use the bulk of the prod uct. Further, if NHTSA regulates, it should not discriminate as to who applies the material.

We feel that we, our fellow distributors numbering perhaps over 30 across the US, and the over 5000 installers across the US are in jeopardy of losing our livelihoods without a hearing. Were we organized into a strong lobby group with resources we might be better able to deal with federal

institutions. We have two allies - plain talk and over half a million car owners a year who have film installed on their car.

ID: nht89-1.95

TYPE: INTERPRETATION-NHTSA

DATE: 06/05/89

FROM: STEPHEN P. WOOD -- NHTSA ACTING CHIEF COUNSEL

TO: Anonymous (confidential)

TITLE: NONE

ATTACHMT: LETTER DATED 03/09/89 TO ERIKA Z. JONES -- NHTSA, REQUEST FOR INTERPRETATIONS OF FMVSS 203 AND 210; NON CONFIDENTIAL VERSION

TEXT: Dear

Thank you for your letter requesting interpretations of how Standards No. 203, Impact Protection for the Driver from the Steering Control System (49 CFR @ 571.203) and 210, Seat Belt Assembly Anchorages (49 CFR @571.210) apply to a vehicle in which the d river's seating position is equipped with both an air bag and an automatic safety belt. We have concluded that the vehicles described in your letter appear not to be subject to the requirements of Standard No. 203, based on your representation that the driver's position in those vehicles would comply with the occupant protection criteria in section S5.1 of Standard No. 208, Occupant Crash Protection (49 CFR @571.208) by means of the air bag alone. Further, if the manufacturer certifies that the driver' s position in those vehicles would comply with the occupant protection criteria in section S5.1 of Standard No. 208 with the automatic safety belts in place, the anchorages for the automatic belts would be exempted from the anchorage location requirement s in Standard No. 210. These conclusions are explained below.

Before discussing the substantive issues raised in your letter, I would like to respond to your request that NHTSA not publicly release the identities of the vehicle manufacturer or its counsel because the development of vehicles with both air bags and a utomatic safety belts "is competitively sensitive." We hereby grant your request. You provided us with a version of your letter deleting all references to the identity of the manufacturer and its counsel. We will make available to the public your purge d version of your letter to us and a version of this letter purged of all references to your identity.

Standard No. 203

With respect to Standard No. 203, section S2 of Standard No. 203 provides that the standard "does not apply to vehicles that conform to the frontal barrier crash requirements (S5.1) of Standard No. 208 by means of other than seat belt assemblies." The fi rst question is whether S2 exempts from Standard No. 203 those vehicles whose driver's seating position

2 conforms to the frontal barrier crash requirements by means other than belt assemblies, or whether S2 only exempts from Standard No. 203 those vehicles in which both the driver's position and the right front outboard seating position conform to the fro ntal barrier crash requirements by means other than belt assemblies. After examining the history and purpose of this requirement, we have concluded that vehicles are not subject to Standard No. 203 if the driver's seating position offers the specified o ccupant protection, for the following reasons.

The title of Standard No. 203 explicitly states that it is intended to provide protection for the driver, not for any other vehicle occupants. Moreover, section S2 of Standard No. 203 was promulgated after NHTSA determined that compliance with the requi rements of Standard No. 203 could impede the development and installation of a more advanced occupant protection system, such as air bags, at the driver's position. See 40 FR 17992; April 24, 1975. This determination would not apply with respect to any seating positions other than the driver's position, because compliance with the requirements of Standard No. 203 would have no positive or negative effects on the development and installation of occupant protection systems at any other seating positions . Given the history and purpose of Standard No. 203 in general and section S2 in particular, section S2 must be interpreted so that Standard No. 203 does not apply to vehicles whose driver's seating position offers the specified occupant protection.

Having determined that one examines only the driver's seating position to see whether a vehicle is exempt from the requirements of Standard No. 203 by virtue of the provision in section S2 of the standard, we must now determine whether a vehicle whose dr iver's seating position is equipped with both an air bag and an automatic safety belt can be said to conform to S5.1 of Standard No. 208 by means other than seat belt assemblies. We conclude that it can if the manufacturer certifies that the driver's se ating position conforms with S5.1 of Standard No. 208 by means of the air bag alone.

If the manufacturer certifies that the air bag alone provides the specified occupant protection at the driver's seating position, then, for purposes of S5.1 of Standard No. 208, the installation of the automatic safety belt would be a voluntary action by the vehicle manufacturer. The agency has long stated that manufacturers are free to install systems or components in addition to the required safety systems or components, provided that the additional systems do not destroy the ability of the required systems to comply with the applicable safety standards. Therefore, if a manufacturer certifies that an air bag alone provides the specified occupant protection at the driver's seating position, an automatic safety belt at that seating position would be a safety system installed in addition to the air bag system. The only limitation on the installation of automatic safety belts at such seating positions would be that the combination of the automatic safety belt and the air bag must comply with the requ irements of S5.1 of Standard No. 208. If a manufacturer certifies that the driver's seating position in a vehicle complies with S5.1 of Standard No. 208 by means of an air bag alone, that vehicle would be exempt from Standard No. 203 even if an automati c safety belt system were also provided for the driver's seating position.

3

If the manufacturer cannot certify that the driver's seating position complies with the requirements of S5.1 by means of the air bag alone, then both the air bag and the automatic safety belt are necessary to provide the required level of occupant protec tion. In this case, the vehicle would be subject to Standard No. 203, because it relies on a seat belt system to conform with the requirements of S5.1 of Standard No. 208.

Standard No. 210 Section S4.3 of Standard No. 210 provides that: "Anchorages for automatic and for dynamically tested seat belt assemblies that meet the frontal crash protection requirement of S5.1 of Standard No. 208 (49 CFR @571.208) are exempt from the location requir ements of this section." This exemption is premised on the agency's conclusion that the anchorage location requirements are unnecessary when the same aspects of performance are indirectly tested in dynamic testing. See 50 FR 14589, at 14595; April 12, 19 85. That is, the anchorage location requirements are an indirect means of ensuring that a belt system will afford adequate protection to a user in a crash. The dynamic testing requirements directly measure the protection the belt system offers belt use rs in a frontal crash.

Your letter referred to a March 14, 1988 letter we sent to Mr. Karl-Heinz Faber. In his letter, Mr. Faber asked whether standard equipment items in the vehicle would be operational during compliance testing. We responded in part as follows:

During its compliance testing, NHTSA combines a test of the occupant crash protection capabilities of automatic or manual safety belts with testing done to determine compliance with other standards. . . . In conducting these compliance tests, NHTSA t ests vehicles in their "as delivered" form with all items of standard equipment present in the vehicle. Thus, if a vehicle has devices, such as an air bag system or pre-tensioning devices for the belts, installed in the vehicle as items of standard equi pment, NHTSA's compliance testing is conducted with those items in place and fully functioning.

In other words, Standard No. 210 does not require that the safety belt alone provide the specified level of occupant protection in order for the anchorages to be exempt from the anchorage location requirements. Such a requirement would be unrealistic, s ince occupant crash protection depends on the safety belt system working synergistically with other vehicle features, such as energy absorbing instrument panels, collapsible steering columns, and anti-lacerative windshield glass. Because of this synergi sm, NHTSA has always conducted its Standard No. 208 compliance testing with all items of standard equipment in place and functioning during the test. We would treat an air bag in the same way. Therefore, if the vehicle manufacturer certifies that the d river's seating position complies with the occupant protection criteria in Standard No. 208 with an automatic belt in position and functional during the test, the anchorages for that automatic belt would be exempt from the location

4 requirements in Standard No. 210. This certification by the manufacturer would be based on the protection afforded by the automatic belt and all other standard features in the vehicle, including air bags.

Sincerely,

ID: 1985-03.34

TYPE: INTERPRETATION-NHTSA

DATE: 08/21/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Edgar E. Clark

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Edgar E. Clark 1900 24th Avenue No. St. Petersburg, Florida 33713

Thank you for your letter of May 13, 1985, concerning the effect of Standard No. 301, Fuel System Integrity, on fuel tank repairs. You explained that you have a 1977 Dodge Concord motor home in which a leak in a plastic fuel tank was apparently repaired by a dealer. You noted that a 1981 article in Popular Mechanics magazine stated that repairs to plastic fuel tanks are not permitted by Standard No. 301, and ask us to clarify the effect of our regulations. As explained below, the magazine article is not correct; a dealer can make repairs to plastic and other types of vehicle fuel tanks. As I am sure you understand, I cannot offer an opinion on the possibility of successfully repairing a damaged plastic fuel tank.

The agency has issued Federal Motor Vehicle Safety Standard No. 301, Fuel System Integrity, which sets safety performance requirements for vehicle fuel systems in new vehicles; a copy of the standard is enclosed. The standard applies to passenger cars, and multipurpose passenger vehicles (MPV), trucks, buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less. In addition, it applies to school buses with a GVWR of greater than 10,000 pounds. If your motor home carries 10 or less persons and is mounted on a truck chassis, it would be considered a MPV under our regulations. Thus, if your motor home has a GVWR of 10,000 pounds or less and was manufactured after September 1, 1976, the effective date of Standard No. 301 for MPV's, then the fuel system in your vehicle would have had to meet Standard No. 301.

For the basis of this response, I am assuming that the damage, such as a puncture or crack, that caused the leak occurred after the sale of the vehicle to its first owner. Our safety standards only apply to new vehicles prior to their first sale. The only effect our safety standards have on used vehicles is through the application of 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. 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....

Thus, if a dealer knowingly alters the fuel system in a used vehicle, such as by adding an auxiliary fuel tank, the dealer would have to take sure that it did not render inoperative the tank's compliance with Standard No. 301. However, if after the first sale of a vehicle to the consumer its fuel tank is damaged, such as being punctured by an object in the road, so that the tank's compliance has been rendered inoperative, then neither our standards nor section 108(a)(2)(A) of the Vehicle Safety Act applies.

I hope this information is helpful. If you have any further questions, please let me know.

Sincerely,

Jeffrey R. Miller Chief Counsel

Enclosure

May 13, 1985

Natl Hiway Traffic Safety Adm. 400 7 St SW Washington, DC 20590

Attn: Vehicle Safety Compliance Office

Gentlemen:

I recently purchased a used motor home - a 1977 Dodge Concord made by Champion and found that the gasoline tank had a leak. The tank is made of plastic and had been repaired by the dealer according to the former owner.

Now, according to a magazine article which I am enclosing I see that repairs to plastic tanks violate Safety Standard 301.

My question is: under the terms of this order do I have any recourse against the dealer who probably didn't even know there was such a regulation?

I feel the tank is very dangerous and should be replaced. So I would like to have your opinion and suggestion.

Thank you for your early attention.

Yours very truly,

Edgar E. Clark Phone 813-822-9139 1900 24th Ave. No. St. Petersburg, FL 33713

"My rupture," Fred writes. "I have had to replace my heater, and I know of several other GM owners who have replaced theirs because of trouble with the GM coolant-recovery tank to the COLD-level mark on the tank."

Fred became aware of trouble when he noticed coolant dripping from the heater case of his Vega. He removed the case and found the heater had ruptured.

"Fortunately, I did not have the heater on," Fred continues. "But my friend wasn't so lucky. One day, with the heater on, he smelled antifreeze, investigating, he found an inch-deep puddle of coolant on the floor of his Corvette."

According to Fred, the siphoning process of the recovery system doesn't work in correct proportion to the ejection process. When the radiator cools off, it draws in more coolant from the recovery tank than it expels into the tank when it's hot. Someone who constantly fills the recovery tank to make up for the drop in level is only adding more fuel to the fire, so to speak, by allowing the radiator to overfill.

Fred says excessive coolant in the radiator causes extraordinary pressure on the heater and heater hoses. Early evidence of this pressure is often seen as coolant seeping past tightly clamped heater hoses.

Fred's solution is to check the coolant level in the radiator with the engine cold. It should be 2 inches below the neck of the radiator. If it isn't, drain it until it is. Then keep it there.

Every few months, do check the radiator and add coolant, if necessary. In other words, forget about checking levels on the coolant-recovery tank.

Negative response

I have a 1976 Dodge W100 pickup truck. Its plastic gas tank has developed a leak in an easy-to-reach spot. Can you tell me how to repair it?--Jon Wilbur, Carlisle, Iowa.

Nope. Motor Vehicle Safety Standard 301 stipulates that it is illegal to repair plastic gas tanks. Your only choice is to install a new one. Sorry.

GOT A PROBLEM WITH YOUR CAR?

Just ask Mort about it. Send your question to the Car Clinic, Popular Mechanics, 224 West 57th St., New York, N.Y. 10019. While letters cannot be answered individually, problems that are of general interest will be published in the column.

SERVICE TIPS

Ford Motor Co. tells us there may be a vacuum leak between the base of the carburetor and carburetor spacer of some 1977-78 Granadas, Monarchs, Fairmonts and Zephyrs with 200- and 240-cu. in. engines. A vacuum leak at this point leans out the fuel mixture and causes stalling and rough idling. The leak can usually be stopped by installing flat washers under each carburetor retaining nut and torquing retaining nuts 12 to 15 ft.-lb. Washers should have an inside diameter of 3/8 in. and be 1/16-in. thick.

If your 1981 Chrysler K-car makes a growl at low speeds, don't panic. Check to see what kind of tires are on the car. If they are Goodyear Viva fiberglass-belted tires, the growl is normal. According to Chrysler, growling noises are caused by "aggressive tread design which offers increased traction and improved handling characteristics."

GM cautions that starting-aid fluids, such as ether or gasoline, must not be injected into the air-intake system of cars and trucks having diesel engines. Their use will cause "severe internal engine damage."

Five Keys to Better Tire Mileage and Safety is the title of an informative pamphlet you can get free by sending a self-addressed, business-sized envelope to: Keys, Tire Industry Safety Council, Box 1801, Washington, D.C. 20013.

ID: 1985-04.50

TYPE: INTERPRETATION-NHTSA

DATE: 12/23/85

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Isis Imports

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. William R. Fink President Isis Imports, Ltd. P.O. Box 2290 U.S. Custom House San Francisco, CA 9412

Dear Mr. Fink:

This is in reply to your letter of November 22, 1985, to the former Chief Counsel of this agency, Frank Berndt. Your company, Isis Imports, is an importer of Morgan passenger cars, and has heretofore imported pursuant to 19 C.F.R. 12.80(b)(1)(iii). Upon advice of your attorney you have concluded that you may instead import them pursuant to 12.80(b)(1)(ix), and wish to inform the National Highway Traffic Safety Administration of that fact.

More specifically, under 12.80(b)(1)(iii) an importer declares that his vehicle was not manufactured in conformity with the Federal motor vehicle safety standards, but that it has been, or will be, brought into conformity: he also is required to furnish a bond for the production of a /conformity statement. Under 12.80(b)(1)(ix), the importer simply declares that the vehicle is an "incomplete vehicle" as defined by 49 CFR Part 568; no bond is required as it is assumed that the vehicle will be completed to conform to the Federal safety standards and bear the certification of its final-stage manufacturer. Because the Morgans are received from Morgan Motor Company without "major components of the fuel system; no fuel tank, fuel lines, carburetor, etc.," you believe that they are (incomplete vehicles," which are defined by S568.3 as "an assemblage consisting as a minimum of frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations...to become a completed vehicle."

We disagree with your conclusion. The rulemaking history of Part 568 clearly shows that the intent of the regulation is to cover vehicles whose manufacture has customarily been shared. As the agency commented in 1970, "A large number of heavy vehicles of all types, of recreational vehicles, and of special purpose vehicles are manufactured in two or more stages, of which the first is an incomplete vehicle such as a stripped chassis, chassis cowl, or chassis cab to which one or more subsequent manufacturers add components to produce a completed vehicle." (35 FR 4639) The Morgan, on the other hand, is a passenger car ordinarily manufactured in a single stage, and in this instance is nonetheless virtually complete when it arrives in the United States. It is therefore a "motor vehicle" within the meaning of 19 CFR 12.80(b)(1)(iii), and the agency will not accept any HS-7 forms evidencing attempts to enter the vehicles pursuant to 12.80(b)(1)(ix).

I enclose copies of a couple of rulemaking proposals on Part 568 so that you might have a better understanding of its thrust. Were we to accept your interpretation, S568.4(a) would require Morgan Motor Company to furnish a document with each vehicle advising Isis how compliance with each applicable Federal motor vehicle safety standard might be affected by its final manufacturing operations. Given the decision of Peter Morgan over the years not to conform his vehicles for the American market, we question whether he would furnish a document attesting that his product complies with all Federal motor vehicle safety standards, except 301, Fuel System Integrity.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

November 22, 1985 Frank Berndt, Esq. Chief Counsel NHTSA 400 Seventh Street, S.W. Washington, D.C. 20590

Dear Mr. Berndt:

I write on the advice of counsel to inform NHTSA and your office of a change in our response to Form HS 7. As you may recall, Isis Imports Ltd. is the U.S. outlet for the Morgan motorcar of England. We sell fewer than twenty-five cars a year, and we complete the manufacture of these cars here in San Francisco. (For your reference, I enclose a copy of our earlier correspondence, a brochure and a magazine article.)

We have until now checked Box 3 on Form HS 7. A review by our attorney of our final manufacture of these cars in the context of the applicable regulations, tells us that only a response checking Box 9 is appropriate to our business.

The Morgan chassis, body and engine is received from the Morgan Motor Company less major components of the fuel system; no fuel tank, fuel lines, carburetor, etc. These vehicles are, therefore, according to our attorney, "incomplete vehicles as per 49CFR Part 568.3:

"Incomplete vehicle means an assemblage consisting, as a minimum of frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

To: Frank Berndt, Esq.

Since the Morgan cars we sell in the United States operate on a propane fuel system, which is of domestic origin, the addition to the vehicle of this fuel system, as well as implementation of required safety systems, necessitates "further manufacturing operations, other than the addition of readily attachable components" as per 49CFR Part 568.3.

The addition of the fuel tank, in particular, is a fairly detailed manufacturing procedure and without the entire fuel system we add, the car is not a complete vehicle, since it could not be operated. We are aware, of course, of the requirements for "Final Stage manufacturers" as stated in 49 CFR 566 and 49 CFR 568 and are forwarding to the Administrator our identification as a "Final Stage Manufacturer."

Please let us know if your office or your agency require any further information from us. Thank you for your courtesy and cooperation.

Yours sincerely,

W. R. Fink President

WRF:jb

File

CERTIFIED MAIL--RETURN RECEIPT REQUESTED

Mr. William R. Fink President Isis Imports, Ltd. P. 0. Box 2290 US Custom House San Francisco, CA 94126

Dear Mr. Fink:

This is in response to your letter of October 21, 1983 requesting confidential treatment for information which was submitted to the National Highway Traffic Safety Administration (NHTSA) with statements of compliance and which pertained to vehicles imported by Isis Imports, Ltd. into the United States.

In telephone conversations with Heidi Lewis Coleman of my staff, you indicated that you had no objection to the release of HS Forms 189. You requested, however, that submitted drawings, diagrams, specifications and photographs showing the methods and extent of modifications made to Morgan vehicles be treated confidentially by this agency. After carefully reviewing the submitted materials and your justifications I have decided to grant your request in part and deny it in part.

All submitted materials will be afforded confidential treatment with the exception of the photographs. NHTSA does not believe that their release will cause substantial harm to Isis Imports. In order to determine whether release of information will cause such harm, courts consider "how valuable the information will be to the requesting competitors and how much this gain will damage the submitter." Worthington Compressors, Inc. v. Costle. 662 F. 2d 45, 51 (D.C. Cir. 1981).

You indicate that a presumption has been established by 49 CFR Part 512 with respect to blueprints and engineering drawings containing process of production data where the subject could not be manufactured without the blueprints or engineering drawings except after significant reverse engineering. This class determination, however, pertains only to blueprints and engineering drawings; it cannot be interpreted to apply to photographs. Additionally, release of the photographs will not be very valuable to the requesting competitor, and will therefore not cause substantial harm to Isis Imports. Since accompanying diagrams, text and other information will remain confidential, significant reverse engineering will still be required to determine the methods and extent of modifications necessary to bring Morgan vehicles into compliance with Federal standards.

If you wish to submit additional justification explaining why Isis is entitled to confidential treatment for the photographs you must do so within 10 days of your receipt of this letter. At the end of that period, they will be made publicly available. I will notify appropriate agency personnel of this decision, and they will treat your submissions accordingly. Sincerely,

Frank Berndt Chief Counsel

ID: 86-1.39

TYPE: INTERPRETATION-NHTSA

DATE: 02/17/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Ralph Trimarchi -- President, Trimco International Sales

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/1/86 (EST) letter from Erika Z. Jones to Dipl.-Ing F. Vapenicek (Nova Hut Klementa Gottwalda)

TEXT:

Mr. Ralph Trimarchi President Trimco International Sales P.O. Box 322 Flushing, NY 11358

This responds to your letter seeking information about the Federal requirements applicable to automotive wheels that are to be imported into the United States. There are two Federal Motor Vehicle Safety Standards that apply to wheel rims, one for rims for passenger cars and the other for rims for other types of motor vehicles. It is not clear whether your reference to "automotive wheels" is limited to passenger car wheels, so I have included a discussion of the requirements for both types of wheels. None of our standards set requirements for the parts of the wheel assembly other than the rim.

The two potentially applicable standards are No. 110, Tire selection and rims - passenger cars, and No. 120, Tire selection and rims for motor vehicles other than passenger cars. I have enclosed copies of both standards, along with Standards No. 109 and No. 119, which are applicable to tires and are referenced in the rim standards. For those passenger car rims you wish to import, section S4.4 of Standard No. 110 specifies two requirements. First, the rim must be constructed to the dimensions of one of the rims that is listed under the definition of a test rim in Standard No. 109. This means that the rim must comply with the dimensional specifications shown for that rim size in the current publications of specified standardization organizations, such as the Tire & Rim Association or the European Tyre and Rim Technical Organisation. Second, in the event of a rapid loss of inflation pressure with the vehicle travelling in a straight line at 60 miles per hour, the rim must retain the deflated tire until the vehicle can be stopped with a controlled braking application.

For those rims you import for use on vehicles other than passenger cars, Standard No. 120 also specifies two requirements. The first requirement, set forth in section S5.1.1, is that the rims on a vehicle must correspond with the size tire on the vehicle, i.e., be listed as suitable by the tire manufacturer, pursuant to either Standard No. 109 or No. 119. This would be done in the publications of the standardization organizations, as explained above. This requirement is the responsibility of any vehicle manufacturer that uses your rims as original equipment, since only it would know what size tires will be installed on the vehicle. The second requirement, set forth in section S5.2, is that the rim be marked by the rim manufacturer with five specified items of information. These are:

1. A specified designation indicating the source of the rim's published nominal dimensions:

2. The rim's size designation and, in the case of multipiece rims, the rim type designation;

3. The symbol DOT, which constitutes a certification by the rim manufacturer that the rim complies with the applicable requirements of the safety standards:

4. A designation identifying the rim manufacturer by name, trademark or symbol; and

5. The month and year in which the rim was manufactured.

You stated that you wanted to learn if the rims were subject to any tests by the Department of Transportation. The United States does not use a certification process similar to the European countries, in which the manufacturer delivers the rims to be certified to a governmental entity, and that entity tests the rims to determine if they can be certified as complying with the applicable standards. Instead, in the United States, the individual rim manufacturer must certify that its rims comply with comply with all applicable standards. The certification need not be based on actual tests: the only requirement is that the manufacturer exercise due care in making the certification. Obviously, with respect to the requirements for rims, a manufacturer as defined below is not expected to test if the rims have the necessary markings and if the rim size is listed in one of the standardization organization publications.

You should also be aware of the fact that section 102(5) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391(5)) treats both the actual manufacturer and the importer of a wheel as its manufacturer. If either the manufacturer or this agency determines that the imported rims do not comply with the requirements of the above-described safety standards or determine that the rims contain a defect related to motor vehicle safety, the manufacturer would be required to remedy the defect or noncompliance. Section 154 (a)(2)(B) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1414(a)(2)(B)) specifies that, if the rims fail to comply within applicable safety standard or contain a safety related defect, the manufacturer must notify purchasers of the safety-related defect or noncompliance and must either:

1. repair the rim so that the defect or noncompliance is removed, or

2. replace the rim with an identical or reasonably equivalent rim that does not have a defect or noncompliance.

Whichever of these options is chosen, the rim manufacturer must bear the full expense and cannot charge the rim owner for the remedy if the rim was first purchased less than 8 years before the notification campaign.

In the event that neither the importer nor the actual manufacturer satisfied an obligation imposed on a "manufacturer" by the Act or our regulations, the agency would consider taking enforcement action against both parties. Any such obligation, however, may be completely satisfied by either party.

Additionally, I am enclosing copies of two procedural rules which apply to all parties subject to the regulations of this agency. The first is 49 CFR Part 566, Manufacturer Identification. This requires either the actual manufacturer of the rims or your company as the importer to submit your name, address, and a brief description of the items of equipment you manufacture to the agency within 30 days of the date these wheels arrive in the United States.

The other regulation is 49 CFR Part 551, Procedural Rules. This regulation requires the actual manufacturer of these rims to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. Your company may be designated as the agent, if the manufacturer so chooses. Part 551 specifies that the designation of agent must contain the following six items of information:

1. A certification that the designation is valid in form and binding on the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made:

2. The full legal name, principal place of business, and mailing address of the manufacturer;

3. Marks, trade names, or other designations of origin of any of the manufacturer's wheels and rims that do not bear its name:

4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer:

5. A declaration of acceptance duly signed by the agent appointed by the manufacturer, and that agent may be an individual, firm, or U.S. corporation: and

6. The full legal name and address of the designated agent.

This designation must be received by this agency before these wheels and rims are imported into the United States.

If you need further information, or a clarification of any of the information set forth herein, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992.

Sincerely,

Erika Z. Jones

Chief Counsel

Enclosures

11/6/85 Office of Cheif Council National Highway Traffic Safety Adm. 400 7th. St. S.W. Washington, 20590

Dear sir,

I own an import/export company in New York and I am planning on importing automotive wheels from Italy. With regards to this, I would like to know if these wheels are subject to any applicable laws or tests by the Dept. of Transportation. If so, please direct me as to the steps involved if not, send a letter stating such.

Thanking you in advance, I remain,

Sincerly yours,

Mr. Ralph Trimarchi

President

RT/c

ID: 86-4.38

TYPE: INTERPRETATION-NHTSA

DATE: 08/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Robert G. Russell

TITLE: FMVSS INTERPRETATION

TEXT:

Robert G. Russell, Acting Director Division of School Traffic Safety and Emergency Planning Indiana Department of Education Room 229 Indianapolis, IN 46204-2798

Dear Mr. Russell:

This responds to your letter asking about NHTSA's regulations for school buses and the relationship between State and Federal school bus definitions and regulations. I regret the delay in responding to your letter.

According to your letter, Indiana distinguishes "special purpose buses from "school buses." Under your State's law, "school buses" are defined as motor vehicles, other than special purpose buses, designed for more than 10 passengers and used to transport school children. "Special purpose buses" are motor vehicles accommodating more than six passenger; used by schools to transport handicapped students to special programs, or school children and supervisors to extracurricular school activities. Special purpose buses are prohibited from being used on a regular basis to carry students between their residences and schools and are not required to meet any State identification, construction or equipment standards for school buses.

You asked whether Indiana's definitions of "school buses" and "special purpose buses" conflict with our school bus definition, and how Federal law might preempt State law in this matter.

To begin, it is important to keep in mind how State and Federal school bus definitions and regulations differ in their application. She standards we have issued under the National Traffic and Motor Vehicle Safety Act apply to vehicles according to our motor vehicle type classifications regardless of the classifications used by the various states. Our safety standards apply to the manufacture and sale of new motor vehicles, including school buses. Our regulatory definitions, set forth in 49 CFR Part 571.3, define a "school bus" as a motor vehicle designed to carry 10 or more passengers plus a driver, sold for purpose; that include carrying students to or from school or related events. Our definitions do not include one for "special purpose buses." A vehicle that is designed to carry 10 or more passengers and meets the Indiana definition of "special purpose buses" is considered a "school bus" under Federal law since it is intended for pupil transportation, not-withstanding its exclusion from Indiana's school bus definition.

Therefore, each person selling l0-passenger or larger "special purpose buses" is required under the Vehicle Safety Act to ensure that those vehicles are certified school buses. Violation of this Federal requirement by sellers of new school buses is punishable by civil penalties of up to 81,000. The requirement applies to new school bus sellers regardless of whether a vehicle is considered a "school bus" under the laws of a particular State.

Further, the preemption provisions in section 103(d) of the Vehicle Safety Act are not limited in their effect by the fact that this agency's classification of a vehicle differs from that of one or more of the States. Regardless of how Indiana classifies a vehicle, Indiana may not apply to that vehicle standards which cover the same aspects of performance as Federal standards but are not identical to the Federal standards. The only exception is a State may set higher standards of performance for vehicles procured for the State's own use.

A State's definition of a "school bus" is, of course, determinative of the application of State requirements to the operation of school buses, such as inspection, maintenance and identification requirements. appears that the provision in Indiana's definitions that special purpose buses are not "school buses" excludes those vehicles from the application of Indiana' school bus operational requirement. While Indiana is responsible for determining requirements for vehicles operating in that State, NHTSA recommends that each State consider carefully setting operational requirements for all vehicles used to carry school children. Recommendations for specific aspects of States' pupil transportation programs have been issued in Highway Safety Program Standard No. 17, Pupil Transportation Safety (copy enclosed), which was promulgated by NHTSA under the Highway Safety Act in connection with the Federal funding of State highway safety programs. While not required to do so, individual States have chosen to adopt some or all of Program Standard No. 17's recommendations and Indiana might want to consider then for their special purpose buses.

You asked whether schools are permitted at any time under Federal law to transport school children to or from school related activities in a vehicle other than a school bus. Strictly speaking, the answer is yes, for two reasons. This is because, first, the requirements of the Vehicle Safety Act apply to new school bus manufacturers and sellers, and not to school bus users. Therefore, we cannot prohibit schools from using noncomplying buses to transport children although we do prohibit the manufacture and sale of new noncomplying school buses. Second, manufacturers and dealers are required to sell complying school buses only if they sell new buses for pupil transportation purposes. Other types of vehicles, for example "multi-purpose passenger vehicles" (vehicles constructed on truck chassis which carry nine or fewer passengers), may be sold to carry school children to school or school-related events.

I hope this information is helpful. Please contact my office if you have any further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

April 10, 1986

Chief Counsel Office Erika, Z. Jones NHTSA Room 5219 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

F/Sgt. Michael Smith of the Indiana State Police and myself spoke with a member of your staff last week in reference to an Indiana law which appears to be in conflict with federal law. Ms. Deirdre Hom was very helpful to us and suggested we write your office for a response.

Indiana enacted a law in 1981 which established a "special purpose bus". By definition, (see page 1 of enclosed statutes), a "special purpose bus means any motor vehicle designed and constructed for the accommodation of more than six (6) passengers, and used by a school corporation for transportation purposes not appropriate for school buses." This type of vehicle is not required to meet any construction or equipment standards in the State. It is only required to be inspected by the State Police once a year. (page 18 IC 20-9.1-4-5)

Page 21 of the enclosure explains the uses of the special purpose buses (IC 20-9.1-5-2.6). They may not be used to provide regular transportation of school children. However, they may be used to transport children and their supervisors, coaches, managers, and sponsors to athletic events, field trips, and other school related activities. Also, these types of vehicles may be used to transport persons enrolled in special education programs for developmentally disabled or physically handicapped persons.

Indiana's definition of a school bus (page 1) is, "any motor vehicle other than a special purpose bus, designed and constructed for the accommodation of more than ten (10) passengers, which is used for the transportation of Indiana school children. The term includes either the chassis or the body or both the chassis and the body." This definition seems to be significantly used for the purpose of transporting primary, pre-primary, or secondary school students to or from such school or events related to such schools."

Further, federal law has established Motor Vehicle Safety Standards in 15 USCS Section 13???. Paragraph d states, "Supremacy of Federal standards; allowable higher standards for vehicles used by Federal or state governments. Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment, any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard . . . etc."

Based on the information previously mentioned, is Indiana's law on special purpose buses and school buses in conflict with Federal law? What recommendations or advice do you give other states regarding this issue? Is it permissible at any time, to transport school children to or from school related activities in a vehicle other than a school bus by schools?

Your written comments and recommendations to these questions would be appreciated. If further information is needed, please call or write this office at your convenience. Thank you for your consideration.

Sincerely,

Robert G. Russell, Acting Director Division of School Traffic Safety/Emergency Planning

RGR/tlg

Enc.