ID: 8240a

Trooper Bob Dittert
Texas Department of Public Safety
10110 NW Freeway
Houston, TX 77092

Dear Mr. Dittert:

This responds to your inquiry about how the Federal Motor Vehicle Safety Standards affect State laws applicable to the same aspect of performance. You were particularly interested in our requirements for window tinting. I am pleased to have this opportunity to explain our regulations to you. After providing background information, I will answer the specific questions raised in your letter.

The National Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards that establish specific levels of safety performance for new motor vehicles and new items of motor vehicle equipment. Standard 205, "Glazing Materials," issued under the Safety Act, has requirements that limit the amount of tinting that can be placed on windows in new vehicles. The standard currently imposes a minimum level of light transmittance of 70% in all areas requisite for driving visibility (which includes all windows on passenger cars). The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash.

Under 108(a)(1)(A) of the Safety Act, no person shall manufacture or sell a new motor vehicle or new item of motor vehicle equipment that does not meet all applicable FMVSS's. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces.

The prohibition in 108(a)(1)(A) against selling complying vehicles and items of equipment does not apply to a vehicle or item of equipment after its first sale to a consumer. However, 108(a)(2)(A) of the Act applies to modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. That section 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.

Please note that the "render inoperative" provision of section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

I would now like to apply this background to the particular questions raised in your letter.

Question One: "Are the CFRs law and enforceable only by federal agents?"

NHTSA's regulations and safety standards are set forth in Title 49 of the Code of Federal Regulations (CFR). These regulations and standards apply without State ratification to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA enforces these regulations and safety standards.

Question Two: "Are the Federal Motor Vehicle Safety Standards law and only enforceable on new manufactured vehicles?"

The FMVSS's apply to new motor vehicles and new items of motor vehicle equipment, and not to used vehicles or equipment. NHTSA may bring enforcement actions against manufacturers of new vehicles and new items of equipment that do not comply with applicable FMVSS's. NHTSA also enforces the "render inoperative" provision of the Safety Act against commercial entitites that modify new or used vehicles in a manner that violates the "render inoperative" provision. We also note that NHTSA can investigate safety defects in new or used vehicles or items of equipment.

Question Three: "Are states allowed to enact legislation that allows less stringent standards than the CFRs?"

We understand you to ask this in the context of window tinting requirements, since elsewhere in your letter you ask whether a Texas law that allows light transmittance of 35 percent violates Federal law.

Your question relates to 103(d) of the Safety Act, which states:

Whenever a Federal motor vehicle safety standard ... 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.

Whether State law is preempted under 103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the manufacture of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to allow the manufacture or sale of glazing materials or new vehicles containing glazing material that did not meet the specifications of Standard 205.

As stated above, Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses (108(a)(2)(A) of the Safety Act). The effect of 108(a)(2)(A) is to impose limits on the tinting practices of businesses listed in 108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to allow modifications violating Standard 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

Because Federal safety standards regulate the manufacture and sale of new motor vehicles, state requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as they do not interfere with the achievement of the purposes of Federal law. Therefore, a state could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard. However, the state cannot legitimize conduct - the rendering inoperative of glazing by commercial businesses installing window tinting - that is illegal under Federal law.

Question 4: "Concerning the installation of non-complying automotive equipment, i.e., sun screening, taillamp `black out' lenses, neon license plate lamps, etc., is this allowed by the owner but prohibited installation by a commercial entity?"

You are correct that 108(a)(2)(A) of the Safety Act regulates the modifications of only the commercial entities listed in that section of the Act, and that the Safety Act does not prohibit an individual from modifying his or her vehicle such that it no longer complies with the FMVSS's. The States may have requirements governing the modification of a vehicle by individual owners.

I hope you find this information helpful. If you have any other questions, please contact Mr. Marvin Shaw of my staff at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:205#VSA d:5/5/93

ID: nht93-3.34

DATE: May 5, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Bob Dittert -- Trooper, Texas Department of Public Safety

TITLE: None

ATTACHMT: Attached to letter dated 1-14-93 from Bob Dittert to NHTSA (OCC 8240)

TEXT: This responds to your inquiry about how the Federal Motor Vehicle Safety Standards affect State laws applicable to the same aspect of performance. You were particularly interested in our requirements for window tinting. I am pleased to have this opportunity to explain our regulations to you. After providing background information, I will answer the specific questions raised in your letter.

The National Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards that establish specific levels of safety performance for new motor vehicles and new items of motor vehicle equipment. Standard 205, "Glazing Materials," issued under the Safety Act, has requirements that limit the amount of tinting that can be placed on windows in new vehicles. The standard currently imposes a minimum level of light transmittance of 70% in all areas requisite for driving visibility (which includes all windows on passenger cars). The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash.

Under S108(a)(1)(A) of the Safety Act, no person shall manufacture or sell a new motor vehicle or new item of motor vehicle equipment that does not meet all applicable FMVSS's. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces.

The prohibition in S108(a)(1)(A) against selling complying vehicles and items of equipment does not apply to a vehicle or item of equipment after its first sale to a consumer. However, S108(a)(2)(A) of the Act applies to modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. That section 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.

Please note that the "render inoperative" provision of section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

I would now like to apply this background to the particular questions raised in

your letter.

QUESTION ONE:

"Are the CFRs law and enforceable only by federal agents?"

NHTSA's regulations and safety standards are set forth in Title 49 of the Code of Federal Regulations (CFR). These regulations and standards apply without State ratification to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA enforces these regulations and safety standards.

QUESTION TWO:

"Are the Federal Motor Vehicle Safety Standards law and only enforceable on new manufactured vehicles?"

The FMVSS's apply to new motor vehicles and new items of motor vehicle equipment, and not to used vehicles or equipment. NHTSA may bring enforcement actions against manufacturers of new vehicles and new items of equipment that do not comply with applicable FMVSS's. NHTSA also enforces the "render inoperative" provision of the Safety Act against commercial entities that modify new or used vehicles in a manner that violates the "render inoperative" provision. We also note that NHTSA can investigate safety defects in new or used vehicles or items of equipment.

QUESTION THREE:

"Are states allowed to enact legislation that allows less stringent standards than the CFRs?"

We understand you to ask this in the context of window tinting requirements, since elsewhere in your letter you ask whether a Texas law that allows light transmittance of 35 percent violates Federal law.

Your question relates to S103(d) of the Safety Act, which states:

Whenever a Federal motor vehicle safety standard ...

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.

Whether State law is preempted under S103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the MANUFACTURE of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to ALLOW THE MANUFACTURE OR SALE of glazing materials or new vehicles containing glazing material that did not meet the specifications of

Standard 205.

As stated above, Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses (SlO8(a)(2)(A) of the Safety Act). The effect of S108(a)(2)(A) is to impose limits on the tinting practices of businesses listed in S108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to ALLOW MODIFICATIONS VIOLATING STANDARD 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

Because Federal safety standards regulate the manufacture and sale of new motor vehicles, state requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as they do not interfere with the achievement of the purposes of Federal law. Therefore, a state could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard. However, the state cannot legitimize conduct - the rendering inoperative of glazing by commercial businesses installing window tinting that is illegal under Federal law.

QUESTION 4:

"Concerning the installation of non-complying automotive equipment, i.e., sun screening, taillamp 'black out' lenses, neon license plate lamps, etc., is this allowed by the owner but prohibited installation by a commercial entity?"

You are correct that S108(a)(2)(A) of the Safety Act regulates the modifications of only the commercial entities listed in that section of the Act, and that the Safety Act does not prohibit an individual from modifying his or her vehicle such that it no longer complies with the FMVSS's. The States may have requirements governing the modification of a vehicle by individual owners.

I hope you find this information helpful. If you have any other questions, please contact Mr. Marvin Shaw of my staff at (202) 366-2992.

ID: nht95-5.49

TYPE: INTERPRETATION-NHTSA

DATE: August 4, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: The Honorable Chuck Chvala -- Wisconsin State Senator

TITLE: NONE

ATTACHMT: ATTACHED TO 7/24/95 LETTER FROM DOUG BURNETT TO DOROTHY NAKAMA

TEXT: Dear Senator Chvala:

This responds to a letter from U.S. Senator Russell D. Feingold on your behalf, asking whether a pending redefinition of Wisconsin's "school bus" definition would violate Federal law. Senator Feingold contacted the National Highway Traffic Safety Administration (NHTSA) because our agency administers the Federal requirements for school buses.

I appreciate this opportunity to address your concerns. As explained below, my review leads me to conclude that Wisconsin's contemplated redefinition of a school bus would not conflict with Federal law, insofar as the redefinition relates to the operation of school buses. However, an area of possible conflict relates to the requirements for mirrors on school buses.

By way of background information, Chapter 301 of Title 49 of the U.S. Code, authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSS's) applicable to new motor vehicles and motor vehicle equipment. In 1974, Congress directed NHTSA to require new school buses to meet FMVSS's on specific aspects of school bus safety, including floor strength, seating systems, and crashworthiness. The legislation requires each person selling a new "school bus" to ensure that the vehicle is certified as meeting the school bus FMVSS's. Following the first retail purchase, the use of vehicles becomes a matter of state regulation.

NHTSA defines a "school bus" as a "bus" that is sold for purposes that include carrying students to and from school or related events, and defines a "bus" as a vehicle designed to carry 11 or more persons. 49 CFR 571.3.

We understand that the new definition contemplated by Wisconsin would exclude some vehicles that are school buses under our definition. Information from Mr. Doug Burnett of your staff indicates that the new definition would define a school bus as "a motor vehicle which carries 16 or more passengers (in addition to the operator)." Thus, a motor vehicle that can carry 11-16 persons (including the driver) would be a "school bus" for Federal purposes, but apparently not for Wisconsin's purposes.

Since the States, and not NHTSA, regulate the use of vehicles, the inconsistency would be immaterial with regard to requirements adopted by Wisconsin pertaining to the use of school buses. Wisconsin may set the operational requirements for those vehicles the State defines as "school buses" without regard to our school bus definition.

However, the inconsistency would matter at the point of sale of a new school bus. The FMVSS's specify requirements for school buses that do not apply to other buses. See, e.g., 49 CFR part 571.222, School bus passenger seating and crash protection. A decision by Wisconsin to adopt a definition other than the Federal definition of a school bus has no effect on the application of the Federal school bus safety standards to a vehicle. Any person selling a new "bus" (a vehicle designed to carry 11 or more persons) to a school must sell a certified "school bus," regardless of whether the vehicle is considered a school bus under Wisconsin law. The vehicle would have to be equipped with the safety features NHTSA requires for school buses.

The information provided by Mr. Burnett indicates that Wisconsin would redefine "school bus" for two purposes. First, Wisconsin would prohibit the operation of a "school bus" -- a vehicle with a capacity of 17 persons (including the driver) -- unless the bus has a specific type of mirror. (Section 347.40) As explained above, this requirement would not affect NHTSA's requirement that vehicles considered to be "school buses" under our definition must be equipped with the mirrors and other safety features we require for school buses, even if the vehicles are not "school buses" under Wisconsin law.

Chapter 301 further provides that a Federal standard preempts any state or local standard applicable to the same aspect of performance that is not identical to the Federal standard. 49 U.S.C. 30103(b). A State standard for mirrors that is not identical to the Federal standard is preempted unless it imposes a higher level of safety and is applicable only to vehicles procured for the State's own use (e.g., public school buses). Wisconsin's requirements for school bus mirrors could be preempted, depending on the type of mirror required and whether the vehicles equipped with it are public buses.

We understand that the second purpose of Wisconsin's contemplated redefinition of a school bus is to require privately-owned vehicles carrying 15 or fewer students to be insured by a policy providing specified minimum coverage. (Section 121.555). This provision concerns matters wholly within State law and would not conflict with Federal law.

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

ID: nht95-3.70

TYPE: INTERPRETATION-NHTSA

DATE: August 4, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: The Honorable Chuck Chvala -- Wisconsin State Senator

TITLE: NONE

ATTACHMT: ATTACHED TO 7/24/95 LETTER FROM DOUG BURNETT TO DOROTHY NAKAMA

TEXT: Dear Senator Chvala:

This responds to a letter from U.S. Senator Russell D. Feingold on your behalf, asking whether a pending redefinition of Wisconsin's "school bus" definition would violate Federal law. Senator Feingold contacted the National Highway Traffic Safety Admini stration (NHTSA) because our agency administers the Federal requirements for school buses.

I appreciate this opportunity to address your concerns. As explained below, my review leads me to conclude that Wisconsin's contemplated redefinition of a school bus would not conflict with Federal law, insofar as the redefinition relates to the operati on of school buses. However, an area of possible conflict relates to the requirements for mirrors on school buses.

By way of background information, Chapter 301 of Title 49 of the U.S. Code, authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSS's) applicable to new motor vehicles and motor vehicle equipment. In 1974, Congress directed NHTSA to requ ire new school buses to meet FMVSS's on specific aspects of school bus safety, including floor strength, seating systems, and crashworthiness. The legislation requires each person selling a new "school bus" to ensure that the vehicle is certified as mee ting the school bus FMVSS's. Following the first retail purchase, the use of vehicles becomes a matter of state regulation.

NHTSA defines a "school bus" as a "bus" that is sold for purposes that include carrying students to and from school or related events, and defines a "bus" as a vehicle designed to carry 11 or more persons. 49 CFR 571.3.

We understand that the new definition contemplated by Wisconsin would exclude some vehicles that are school buses under our definition. Information from Mr. Doug Burnett of your staff indicates that the new definition would define a school bus as "a mot or vehicle which carries 16 or more passengers (in addition to the operator)." Thus, a motor vehicle that can carry 11-16 persons (including the driver) would be a "school bus" for Federal purposes, but apparently not for Wisconsin's purposes.

Since the States, and not NHTSA, regulate the use of vehicles, the inconsistency would be immaterial with regard to requirements adopted by Wisconsin pertaining to the use of school buses. Wisconsin may set the operational requirements for those vehicle s the State defines as "school buses" without regard to our school bus definition.

However, the inconsistency would matter at the point of sale of a new school bus. The FMVSS's specify requirements for school buses that do not apply to other buses. See, e.g., 49 CFR part 571.222, School bus passenger seating and crash protection. A d ecision by Wisconsin to adopt a definition other than the Federal definition of a school bus has no effect on the application of the Federal school bus safety standards to a vehicle. Any person selling a new "bus" (a vehicle designed to carry 11 or more persons) to a school must sell a certified "school bus," regardless of whether the vehicle is considered a school bus under Wisconsin law. The vehicle would have to be equipped with the safety features NHTSA requires for school buses.

The information provided by Mr. Burnett indicates that Wisconsin would redefine "school bus" for two purposes. First, Wisconsin would prohibit the operation of a "school bus" -- a vehicle with a capacity of 17 persons (including the driver) -- unless th e bus has a specific type of mirror. (Section 347.40) As explained above, this requirement would not affect NHTSA's requirement that vehicles considered to be "school buses" under our definition must be equipped with the mirrors and other safety feature s we require for school buses, even if the vehicles are not "school buses" under Wisconsin law.

Chapter 301 further provides that a Federal standard preempts any state or local standard applicable to the same aspect of performance that is not identical to the Federal standard. 49 U.S.C. 30103(b). A State standard for mirrors that is not identical to the Federal standard is preempted unless it imposes a higher level of safety and is applicable only to vehicles procured for the State's own use (e.g., public school buses). Wisconsin's requirements for school bus mirrors could be preempted, dependi ng on the type of mirror required and whether the vehicles equipped with it are public buses.

We understand that the second purpose of Wisconsin's contemplated redefinition of a school bus is to require privately-owned vehicles carrying 15 or fewer students to be insured by a policy providing specified minimum coverage. (Section 121.555). This p rovision concerns matters wholly within State law and would not conflict with Federal law.

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

ID: 9775

The Honorable Chuck Chvala
Wisconsin State Senator
State Capitol
P. O. Box 7882
Madison, WI 53707-7882

Dear Senator Chvala:

This responds to a letter from U.S. Senator Russell D. Feingold on your behalf, asking whether a pending redefinition of Wisconsin's "school bus" definition would violate Federal law. Senator Feingold contacted the National Highway Traffic Safety Administration (NHTSA) because our agency administers the Federal requirements for school buses.

I appreciate this opportunity to address your concerns. As explained below, my review leads me to conclude that Wisconsin's contemplated redefinition of a school bus would not conflict with Federal law, insofar as the redefinition relates to the operation of school buses. However, an area of possible conflict relates to the requirements for mirrors on school buses.

By way of background information, Chapter 301 of Title 49 of the U.S. Code, authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSS's) applicable to new motor vehicles and motor vehicle equipment. In 1974, Congress directed NHTSA to require new school buses to meet FMVSS's on specific aspects of school bus safety, including floor strength, seating systems, and crashworthiness. The legislation requires each person selling a new "school bus" to ensure that the vehicle is certified as meeting the school bus FMVSS's. Following the first retail purchase, the use of vehicles becomes a matter of state regulation.

NHTSA defines a "school bus" as a "bus" that is sold for purposes that include carrying students to and from school or related events, and defines a "bus" as a vehicle designed to carry 11 or more persons. 49 CFR 571.3.

We understand that the new definition contemplated by Wisconsin would exclude some vehicles that are school buses under our definition. Information from Mr. Doug Burnett of your staff indicates that the new definition would define a school bus as "a motor vehicle which carries 16 or more passengers (in addition to the operator)." Thus, a motor vehicle that can carry 11-16 persons (including the driver) would be a "school bus" for Federal purposes, but apparently not for Wisconsin's purposes.

Since the States, and not NHTSA, regulate the use of vehicles, the inconsistency would be immaterial with regard to requirements adopted by Wisconsin pertaining to the use of school buses. Wisconsin may set the operational requirements for those vehicles the State defines as "school buses" without regard to our school bus definition.

However, the inconsistency would matter at the point of sale of a new school bus. The FMVSS's specify requirements for school buses that do not apply to other buses. See, e.g., 49 CFR part 571.222, School bus passenger seating and crash protection. A decision by Wisconsin to adopt a definition other than the Federal definition of a school bus has no effect on the application of the Federal school bus safety standards to a vehicle. Any person selling a new "bus" (a vehicle designed to carry 11 or more persons) to a school must sell a certified "school bus," regardless of whether the vehicle is considered a school bus under Wisconsin law. The vehicle would have to be equipped with the safety features NHTSA requires for school buses.

The information provided by Mr. Burnett indicates that Wisconsin would redefine "school bus" for two purposes. First, Wisconsin would prohibit the operation of a "school bus"--a vehicle with a capacity of 17 persons (including the driver)--unless the bus has a specific type of mirror. (Section 347.40) As explained above, this requirement would not affect NHTSA's requirement that vehicles considered to be "school buses" under our definition must be equipped with the mirrors and other safety features we require for school buses, even if the vehicles are not "school buses" under Wisconsin law.

Chapter 301 further provides that a Federal standard preempts any state or local standard applicable to the same aspect of performance that is not identical to the Federal standard. 49 U.S.C. 30103(b). A State standard for mirrors that is not identical to the Federal standard is preempted unless it imposes a higher level of safety and is applicable only to vehicles procured for the State's own use (e.g., public school buses). Wisconsin's requirements for school bus mirrors could be preempted, depending on the type of mirror required and whether the vehicles equipped with it are public buses.

We understand that the second purpose of Wisconsin's contemplated redefinition of a school bus is to require privately-owned vehicles carrying 15 or fewer students to be insured by a policy providing specified minimum coverage. (Section 121.555). This provision concerns matters wholly within State law and would not conflict with Federal law.

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

Sincerely,

John Womack Acting Chief Counsel

cc: The Honorable Russell D. Feingold United States Senate 502 Hart Senate Office Building Washington, D.C. 20510

ref:571 d:8/4/95

ID: nht94-4.59

TYPE: INTERPRETATION-NHTSA

DATE: October 24, 1994

FROM: Bryan J Williams -- Director, International Operations, Red Spot Paint And Varnish Co., Inc.

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

TITLE: REF: Request For Written Interpretation / FMVSS108 and AAMVA Listing

ATTACHMT: ATTACHED TO LETTER DATED 12/7/94 FROM PHILIP R. RECHT TO BRYAN J. WILLIAMS (A42; REDBOOK 2; STD. 108)

TEXT: Red Spot Paint & Varnish Co. Inc. is a manufacturer of specialty coatings for plastics. Our major market is for automotive applications; one of which is UV Curable SRC coatings for polycarbonate headlamp lenses. These products (specifically UVT200) pro vide abrasion resistance properties as well as protecting the plastic lens from the deleterious effects of outdoor exposure.

UVT200 has approvals from Ford Motor Company, General Motors and Chrysler Corporation for application on polycarbonate headlamp lenses to Specifications ESB-M80J-3A, MG5060 and MS-PP5-5 respectively. The coating was approved following the completion of 3 year Florida and Arizona weathering; measurements indicating the coating's conformity to the standards of SAEJ576(c) [1970] ref: chromaticity, haze, luminous transmittance and appearance were performed by the Red Spot Test Laboratory (which has "Self C ertifying" status from these US automakers.) The coating is currently being used in production at finishers for all three of these OEMs; there have been no questions about the "acceptability" of this coating on polycarbonate from any US State or Territor y.

I have received several requests from overseas headlamp manufacturers (potential users of UVT200) with respect to the fact that UVT200 does not appear on the American Association of Motor Vehicle Administrators (AAMVA) "Listing of Acceptable Plastics for Optical Lenses and Reflectors Used on Motor Vehicles."

The question for which written interpretation is requested is as follows:

Must a coating for plastic (polycarbonate) headlamp lenses appear on the AAMVA "Listing . . ." in order to meet the requirements of FMVSS108?

The perception exists among overseas headlamp manufacturers that AAMVA Listing of a coating is required by Federal Law . . . that appearance on this list is a prerequisite for the certification to FMVSS108 standards.

Your written comments clarifying the status of AAMVA (and their "Listing . . ." publication) and its relationship to Federal Motor Vehicle Safety Standards are requested.

Please respond via facsimile to (812) 467-2388 to my attention.

Thank you for your attention to this matter and I shall await your response. If you have questions or find issues which require further clarification, please contact me directly: Bryan J Williams

Director, International Operations

Red Spot Paint & Varnish Co. Inc.

1111 East Louisiana Street

Evansville IN 47711

P: (812) 428-9192

F: (812) 467-2388

ID: 10267

October 4, 1994

Mr. Ashpy Lowrimore Senior Vice President Southern National Bank P.O. Box 6676 Florence, SC 29502

Dear Mr. Lowrimore:

This responds to your August 11, 1994 letter regarding our requirements for school vehicles. You explain that your church owns a "commercial bus" and a 15-passenger van and would like to use these vehicles to transport children attending a kindergarten and after school care program that the church operates. You ask to be advised of any requirements applicable to those two vehicles, and have three questions, which I will answer below.

I would like to begin with background information about our requirements. Our agency has two sets of regulations, issued under different Acts of Congress, that affect school vehicles. The first of these, the Federal motor vehicle safety standards (FMVSS's) issued under 49 U.S.C. 30101, et seq., apply to the manufacture and sale of new motor vehicles. Our agency was directed by Congress in 1974 to issue standards on specific aspects of school bus safety, including floor strength, seating systems, and crashworthiness. The standards we issued apply to all new vehicles designed to carry 11 or more persons and sold for pupil transportation purposes. Under our requirements, such a vehicle is a "school bus," and any person selling such a vehicle must ensure that the new vehicle is certified as meeting the FMVSS's for school buses.

The second set of regulations issued by this agency was promulgated under the Highway Safety Act of 1966. These "regulations" are actually recommendations from NHTSA to the States for use in developing their highway safety programs. Highway Safety Program Guideline No. 17, Pupil Transportation Safety, 23 CFR 1204 (copy enclosed), applies to school vehicles, and contains recommendations for the design, identification and operation of school vehicles. Individual States have chosen to adopt some or all of Guideline No. 17 as their own policies governing their highway safety programs.

With that background in mind, I turn now to your specific questions:

1. Can we transport children who are related with our various schools by utilizing the van?

ANSWER: The answer depends on State law, because the States regulate the use of motor vehicles, not NHTSA. NHTSA regulates the manufacture and sale of new vehicles. Any person selling a new bus or a new 15- passenger van to your church for purposes that include transporting kindergarten students to and from school or related events must sell buses that meet our FMVSS's for school buses, or face substantial civil fines and injunctive sanctions. NHTSA does not have the authority to regulate vehicle users, and thus does not mandate what vehicle can be used to transport school children. Thus, our regulations impose no requirement on schools that require them to transport students in complying school buses.

While NHTSA does not require the use of any particular type of vehicle to transport students, we believe that school buses are the safest motor vehicle transportation currently available. We have included in Guideline No. 17 a recommendation that States require any bus (or van carrying 11 or more persons) used to carry school children to comply with all FMVSS's applicable to school buses at the time of their manufacture (see, recommendation number IV.B.1.h). However, since Guideline No. 17 will affect your church's school vehicles only if South Carolina has adopted it, you should check to see what State requirements are set for the operation of the school vehicles in question.

Mr. Perry Brown, Deputy Director of South Carolina's Office of Highway Safety Programs, would be able to provide information about your State's requirements. He can be contacted at the following address:

Mr. Perry Brown Edgar A. Brown State Office Building 1205 Pendleton St., Rm. 453 Columbia, SC 29201

2. Are there restrictions associated with the use of the bus in the transportation of children, young adults or senior adults?

As explained above, NHTSA has no restriction on the use of motor vehicles. Restrictions on the use of a vehicle are matters of State law. Among other things, the State could require a special driver's license for persons operating buses as you described. A South Carolina official would be able to provide the information you need.

3. If there are special restrictions, can you elaborate on the type of equipment that we must obtain in order to meet any regulations or requirements that are in place?

ANSWER: Again, NHTSA has no restrictions on the use of the vehicles by the church. Further, NHTSA does not require schools operating their vehicles to ensure that the vehicles are specially identified or equipped as school vehicles. However, Guideline No. 17 contains recommendations for identifying school buses and equipping them with safety equipment, including school bus lamps and mirrors and emergency equipment. South Carolina may have adopted some of these recommendations in its highway safety program for school vehicles.

In summary, NHTSA does not have the authority to regulate the use of school vehicles owned and operated by your church. You should check with South Carolina officials to find out which, if any, State requirements apply to your church's activities.

We hope this information is helpful to you. Should you have any further questions regarding this matter, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure

ref:571 d:10/4/94

ID: 8091a

Mr. L. Schmidt
610 Fulton Street
Seymour, WI 54165

Dear Mr. Schmidt:

Your letter requesting information about regulations that might affect substitution of a diesel engine for a "worn out" gasoline engine has been referred to my office for reply. I apologize for the delay in answering.

By way of background, NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue Federal motor vehicle safety standards (FMVSS's) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with the FMVSS's. Instead, under the Safety Act, each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards.

We do not have any requirements that would apply to the conversion of a vehicle from gasoline to diesel if the conversion is made by you on your own vehicle. The Safety Act and our regulations generally do not apply to a vehicle after the vehicle is sold to a consumer for purposes other than resale. Although the Safety Act prohibits certain entities from tampering with or removing federally required safety systems, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle.

If the diesel engine were substituted for the gasoline engine by a vehicle manufacturer, distributor, dealer or repair business, the installer would not have to certify the vehicle as described above. Instead, 108(a)(2)(A) of the Safety Act requires any of these parties making the substitution to ensure that it did not knowingly render inoperative any device or system of design installed in compliance with any applicable safety standard, such as Standard 301, "Fuel System Integrity" (49 CFR 571.301, copy enclosed). The purpose of Standard 301 is to reduce deaths and injuries occurring from fires that result from fuel spillage during and after motor vehicle crashes.

The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item regardless of its effect on compliance with the FMVSS's. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

You also asked if any law forbade diesel conversions in zones within your state in which emissions tests are required. We suggest you contact the Environmental Protection Agency for any questions concerning emissions and air quality. The general telephone number for the EPA is (202) 382-2090. You should also contact the state of Wisconsin for emissions testing regulations.

I hope this information is helpful. If you have any more questions about NHTSA's safety standards, please contact David Elias of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:301 d:5/6/93

ID: 19097.wkm

Mr. Stuart Leopold
DGS Enterprises, Ltd.
2800 Covered Bridge Road
Merrick, NY 11566

Dear Mr. Leopold:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked for a letter stating that use of your "Tire Mend" does not "violate" any Federal motor vehicle safety standards (FMVSS) and may be used in any vehicle. "Tire Mend" is not subject to any FMVSSs. The question of whether the use of "Tire Mend" would violate Federal law is addressed below.

Your letter described "Tire Mend" as a light gel-like substance that when injected into a tire, coats the interior of the tread, rim, and back of the valve stem to seal punctures of up to 5 millimeters (1/4 inch) in diameter. You stated that "Tire Mend" is non-toxic, non-flammable, biodegradable, and contains rust and corrosion inhibitors. You also stated that Goodyear Tire & Rubber Company and Yokohama Tire Corporation have told you that the use of "Tire Mend" does not invalidate their warranties; and that the State of New York has permitted the use of "Tire Mend" in that state.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority under Chapter 301 of Title 49, U.S.Code (U.S.C.) (Safety Act) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system in which manufacturers certify that their products comply with all applicable FMVSSs in effect on the date of manufacture. NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer ascertains that a vehicle or item of equipment does not comply with an applicable standard or has a safety-related defect, the manufacturer is responsible for notifying owners and for remedying the defect or noncompliance at no charge to the consumer. In view of that self-certification system, NHTSA does not approve, disapprove, test, endorse, or certify any motor vehicle or item of motor vehicle equipment prior to its introduction into the retail market.

NHTSA has not issued any FMVSSs specifically applicable to substances such as "Tire Mend." You stated in a recent telephone conversation with Mr. Myers that "Tire Mend" is primarily an aftermarket item that is currently used primarily by fleet operators and other medium to heavy vehicles and is not yet available to the general public. Section 30122 of the Safety Act provides that a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in accordance with any FMVSS. Therefore, any product such as "Tire Mend" could not be installed by one of those entities if such use adversely affected the compliance of a vehicle or tire with any FMVSS. This provision does not apply, however, to equipment attached to or installed on or in a vehicle or item of equipment by the vehicle owner.

The use of "Tire Mend" may be subject to the laws of various states in which it is sold and/or used. We are unable to advise you on state laws, thus we recommend that you check with the motor vehicle departments of the states in which you intend to market "Tire Mend." In that connection, you may also contact the American Association of Motor Vehicle Administrators, 4301 Wilson Blvd., Suite 400, Arlington, VA 22203, (703) 522-4200.

I note that the Federal Highway Administration has jurisdiction over commercial carriers in interstate commerce. We are therefore coordinating this response through the Program Manager for Motor Carriers and Highway Safety for that agency, this address, telephone (202) 366-4012.

For your information, I am enclosing a fact sheet prepared by this agency titled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment. This fact sheet provides general information on the requirements applicable to manufacturers of new motor vehicles and equipment.

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact Mr. Myers at this address or by telephone at (202) 366-2992, or fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:109#119
d.3/30/99

ID: nht93-3.36

DATE: May 6, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: L. Schmidt

TITLE: None

ATTACHMT: Attached to letter dated 11-20-92 from L. Schmidt to NHTSA (OCC 8091)

TEXT: Your letter requesting information about regulations that might affect substitution of a diesel engine for a "worn out" gasoline engine has been referred to my office for reply. I apologize for the delay in answering.

By way of background, NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue Federal motor vehicle safety standards (FMVSS's) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with the FMVSS's. Instead, under the Safety Act, each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards.

We do not have any requirements that would apply to the conversion of a vehicle from gasoline to diesel if the conversion is made by you on your own vehicle. The Safety Act and our regulations generally do not apply to a vehicle after the vehicle is sold to a consumer for purposes other than resale. Although the Safety Act prohibits certain entities from tampering with or removing federally required safety systems, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle.

If the diesel engine were substituted for the gasoline engine by a vehicle manufacturer, distributor, dealer or repair business, the installer would not have to certify the vehicle as described above. Instead, S108(a)(2)(A) of the Safety Act requires any of these parties making the substitution to ensure that it did not knowingly render inoperative any device or system of design installed in compliance with any applicable safety standard, such as Standard 301, "Fuel System Integrity" (49 CFR S571.301, copy enclosed). The purpose of Standard 301 is to reduce deaths and injuries occurring from fires that result from fuel spillage during and after motor vehicle crashes.

The prohibition of S108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item regardless of its effect on compliance with the FMVSS's. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

You also asked if any law forbade diesel conversions in zones within your state in which emissions tests are required. We suggest you contact the Environmental Protection Agency for any questions concerning emissions and air quality. The general telephone number for the EPA is (202) 382-2090. You should also contact the state of Wisconsin for emissions testing regulations.

I hope this information is helpful. If you have any more questions about NHTSA's safety standards, please contact David Elias of my staff at this

address or by telephone at (202) 366-2992.

Attachment: 49 CFR S571.301, Fuel System Integrity. (Text omitted.)