ID: nht92-8.35

DATE: March 2, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Steve Ross -- Future Visions, Ltd.

TITLE: None

ATTACHMT: Attached to letter dated 1/16/92 from Steve Ross to NHTSA (OCC 6902)

TEXT:

This responds to your letter that requested information about how the laws and regulations administered by this agency would apply to a product you wish to market. This product is an antitheft device for trucks and passenger automobiles equipped with power-assisted steering. In your letter, you stated that your device is designed to prevent the theft of a vehicle by blocking the flow of hydraulic fluid in hydraulic steering systems, so that the vehicle cannot be steered. In a subsequent telephone conversation with Dorothy Nakama of my office, you explained that your device is to be installed on vehicles in the aftermarket, and will not be installed as original equipment on new vehicles. I am pleased to have the opportunity to discuss our laws and their applicability to your device.

By way of background information, NHTSA has no authority to approve, endorse or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment. Accordingly, it is misleading and incorrect to state, as does page 2 of the "Summary from Originating Country" enclosed with your letter, that this device has been "approved by the USA." Instead, the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act," 15 U.S.C. 1381 et seq.) makes manufacturers of motor vehicles or items of motor vehicle equipment responsible for certifying that each of their products conforms with all applicable safety standards.

In this instance, there are no specific provisions in the safety standards that set forth requirements for devices that block the flow of hydraulic fluid in hydraulic steering systems. Thus, your company as the manufacturer of such a product would not have to certify that a device that blocks the flow of hydraulic fluid in steering systems complies with any safety standards before offering it for sale to the public.

However, the addition of this device to a vehicle before the vehicle's first sale to the public could affect the vehicle's compliance with the safety standards. NHTSA's certification regulation requires vehicle manufacturers to permanently attach a label to each of their new vehicles stating that the vehicle complies with all applicable safety standards. See 49 CFR S567.4. The certification regulation also sets forth requirements for persons who modify previously certified

vehicles by adding, modifying, or substituting readily attachable components or who modify vehicles so that the stated weight ratings are no longer valid. Such persons are considered "alterers" of the prviously certified vehicles. Alterers are required to leave the original manufacturer's label in place and affix an additional label identifying the alterer and stating that the vehicle, as altered, continues to comply with all applicable safety standards. See 49 CFR S567.7.

While your letter gave no details about how this device would be installed on a vehicle, it seems highly unlikely that a device would be treated as "readily attachable" if it requires the installation of separate lines to carry hydraulic fluid between itself and the power steering unit. Thus, any person that installed this device on a new vehicle before the vehicle's first sale to the public would be required to certify that the vehicle complies with all applicable safety standards with this device installed.

After the first sale to the public, persons who modify vehicles are subject to the prohibition in section 108(a)(2) of the Safety Act, 15 U.S.C. 1397(a)(2). 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 or item of motor vehicle in compliance with an applicable Federal motor vehicle safety standard..."

To avoid a "rendering inoperative" violation for vehicles that comply with any of our safety standards, you should examine the proposed installation instructions for your device and compare those instructions with the requirements of our safety standards, to determine if installing the device in accordance with those instructions would result in the vehicle no longer complying with any of those safety standards. If the installation of your device would not result in a "rendering inoperative" of the vehicle's compliance with the safety standards, the device can be installed by dealers, distributors, and repair shops without violating any Federal requirements.

Manufacturers of motor vehicle equipment such as your device are also subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either your company or this agency determines that a safety-related defect exists in your device, your company as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the product so that the defect is removed; or

(2) replace the product with identical or reasonably

equivalent products which do not have a defect.

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

For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and new motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. You should also be aware that state laws may apply to the use of your device. For further information on state laws, you may wish to contact the American Association of Motor Vehicle Administrators at 4600 Wilson Boulevard, Arlington, Virginia 22203.

I hope this information is helpful. Please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992 if you have any further questions or need additional information.

ID: 18110.wkm

Mr. Joseph Hogan
HYCOP AB
Box 970
S591 29 Motala
Sweden

Dear Mr. Hogan:

This responds to questions you asked in a letter that was faxed to Jeannette Greenfield of the National Highway Traffic Safety Administration (NHTSA) on May 19, 1998, and in telephone conversations with Walter Myers of my staff on June 3 and 11, 1998. Your questions concern several different requirements in Federal Motor Vehicle Safety Standard No. 106, Brake hoses (copy enclosed).

Registering a Designation

You explain that you manufacture vacuum brake hose assemblies for Saab Automobile AB (Saab). You state that you would like to "register the DOT label" and ask us to indicate acceptance of the labeling. Standard 106 does not require labeling to be registered, but instead requires manufacturers to file a designation with NHTSA that identifies the manufacturer as the assembler (S9.1.3). The manufacturer, in turn, labels the designation on the vacuum brake hose assembly. We have established a procedure by which our Office of Vehicle Safety Compliance will check to ensure that the designation you wish to use is not already in use, and will inform you under separate cover of the results of its review. I have enclosed a copy of the form you should complete and submit for this purpose.

Labeling the Assembly

The labeling requirements for vacuum brake hose assemblies are set forth in S9.1.3 of Standard 106. That section provides, among other things, that vacuum brake hose assemblies made with end fittings attached by crimping or swaging and plastic tube assemblies made with fittings attached by heat shrinking or dimensional interference fit, except those sold as part of a motor vehicle, shall be labeled either (a) with a band around the assembly, or (b) by marking an end fitting. If option (a) is used, the band must be etched, embossed, or stamped in block capital letters, at least 1/8 inch high, with the symbol "DOT" and the manufacturer's designation that has been filed with NHTSA. If option (b) is used, the assembly manufacturer may etch, stamp, or emboss at least one end fitting of the assembly with the manufacturer's designation, at least 1/16 inch high. You must mark your assemblies using one of these options.

Labeling the Hose With Supplemental Information

You ask whether you may add supplemental labeling to your product, in addition to the marking required by S9.1.3. You told Mr. Myers in your June 11 telephone conversation that Saab wants you to label your hoses as follows:

DOT HYCOP XXX - XX 12.5 x 1.25 OD VL

You explained to Mr. Myers that the "DOT" would indicate compliance with Standard 106; "HYCOP" would be your manufacturer's identification code; XXX would represent the day of manufacture, from 001 to 365, while XX would represent the year; 12.5 would indicate the outside diameter of the hose in millimeters; 1.25 would represent the thickness of the hose wall, also in millimeters; and that OD and VL would represent outside diameter and light duty vacuum brake hose, respectively.

It is permissible for you to label your hose with additional labeling, subject to the following. By marking the hose with the "DOT" symbol, you are indicating that the component complies with Standard 106. Standard 106 has hose marking requirements that you did not have to meet because your hose is sold as part of a hose assembly (see the exception in S9.1.1 that excludes such hose from the labeling requirement). While your hose is excluded from marking requirements, there are performance requirements in the standard that apply to it. We do not prohibit you from providing a repetitious certification (the "DOT" symbol) if you wish to mark the hose that way. However, if you undertake to mark your hose with the DOT symbol, you must mark your hose with the other markings required of vacuum hoses as well, as specified in S9.1.1 of the standard.

Subsection S9.1.1 of the standard sets forth the labeling requirements for bulk vacuum hoses. Those requirements are:

(a) The symbol "DOT", which constitutes the manufacturer's certification that the hose complies with applicable standards;

(b) The manufacturer's designation which, as noted above, is required to be filed with NHTSA;

(c) The month, day, and year or month and year of manufacture;

(d) The nominal inside diameter of the hose, expressed in inches or millimeters; or the nominal outside diameter of plastic tubing, again expressed in inches or millimeters (the abbreviation "mm" must follow hose sizes that are expressed in millimeters), followed by the letters "OD"; and

(e) The letters "VL" or "VH" indicating light or heavy duty brake hose, respectively.

Assuming that we accept "HYCOP" as your designation, your proposed labeling would comply with (a), (b), (c), and (e). However, as noted above, (d) calls for marking either the inside diameter of the hose or, in the case of plastic tubing, you can mark the outside diameter. In neither case is the thickness of the hose wall marked. Thus, the 1.25 figure representing the thickness of the hose wall must be removed. Further, the 12.5 for the outside diameter of the hose must be followed by "mm," indicating a measurement in millimeters, then followed by the letters "OD."

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact us at this address or by telephone at 001 801 10 (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
d.7/10/98
ref: #106

ID: nht93-6.49

DATE: September 29, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: William C. Longo -- Chief Executive Officer, Ram Off Road Accessories

TITLE: None

ATTACHMT: Attached to letter dated 6/7/93 from Willaim (William) C. Longo to Office of the Chief Consel (OCC 8746)

TEXT:

This responds to your letter concerning possible liability involved with marketing a product you manufacture, particularly with respect to installation of the product on vehicles equipped with Supplemental Restraint Systems (SRS), also known as air bags. I regret the delay in responding to your letter. In a June 16, 1993 phone conversation with Mary Versailles of my staff, Troy Wood explained that the products are aftermarket decorative sheet metal accessories that attached to the exterior of vehicles. Your company also makes replacement bumpers for vehicles. As Ms. Versailles explained on the phone, this letter will discuss Federal laws which might be affected by the addition of your products on vehicles equipped with air bags. Potential liability questions should be addressed to a private attorney who is familiar with tort law.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. S1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Section 108 (a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish Standard No. 208, Occupant Crash Protection (49 CFR S571.208). Among other things, Standard No. 208 requires that cars be equipped with automatic crash protection. "Automatic crash protection" means that a vehicle is equipped with occupant restraints that require no action by vehicle occupants. The performance of automatic crash protection is dynamically tested, that is, the automatic systems are required to comply with certain injury reduction criteria as measured by test dummies in a barrier crash test at speeds up to 30 mph. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are-not used). A new Federal statutory requirement will make air bags mandatory in all cars and light trucks by the late 1990's.

Standard No. 208 applies to new vehicles; therefore, if your products are installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including Standard No. 208, with your product installed. However,

as explained in the phone conversation with Ms. Versailles of my staff, we understand your products are intended as items of after-market equipment.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, a provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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.

Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation. The "render inoperative" provision would prohibit a commercial business from installing your product on a vehicle equipped with an air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208 or any other safety standard. For example, the installer would have to be careful not to activate a sensor while attaching your product, causing the air bag to deploy.

Please note that the "render inoperative" prohibition would apply to a manufacturer, distributor, dealer, or repair business installing your product, and not to your company as the manufacturer of the product. Also note that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your product on their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual states have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: 1769y

Mabel Y. Bullock, Esq.
Assistant Attorney General
State of North Carolina
Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629

Dear Ms. Bullock:

Thank you for your letter to Ms. Susan Schruth of my staff, regarding North Carolina General Statute 20-127, Windshields must be unobstructed. I regret the delay in responding. You enclosed a copy of the statute, the regulations implementing it, a copy of a December 18, l987 legal memorandum prepared by your department concluding that a State statute or regulation allowing 35% light transmittance through windows in motor vehicles would be preempted by current Federal safety laws and standards regulating this same subject matter, and a copy of a May 6, 1988 letter from the Motor and Equipment Manufacturers Association (MEMA) to Mr. William S. Hiatt, the Commissioner of Motor Vehicles for North Carolina, asserting that the North Carolina statute was not preempted by Federal laws and regulations. You asked for my opinion as to whether the North Carolina statute conflicts with any provision of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. /1381 et seq.) or with the Federal Motor Vehicle Safety Standards (49 CFR 571.1 et seq.).

Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, Glazing Materials (49 CFR /571.205), which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." Because of this statutory requirement, any manufacturer, importer, or dealer that installs solar films or other sun screen devices on new glazing materials or the glazing installed in new vehicles must certify that the vehicle continues to comply with the light transmittance and other requirements of Standard No. 205.

The requirement that a car comply with all applicable safety standards applies only until the car is first sold to a consumer. See section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)). Both before and after a vehicle is first sold to a consumer, any modifications to the vehicle's windows, including tinting, are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with any safety standard. In the case of windows in a passenger car, this means that no manufacturer, dealer, distributor, or repair business could install a sun screen device or window tinting that would result in a light transmittance of less than 70 percent for any window of the car, or otherwise cause the car to no longer comply with the other requirements of Standard No. 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $1000 for each noncomplying installation.

Please note that Federal law does not affect vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles.

The authority of States to regulate glazing is affected by section 103(d) of the Safety Act (15 U.S.C. /1392(d)). This section provides that:

[w]henever 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. Nothing in this section shall be construed as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.

The effect of this provision of the Safety Act, with respect to the light transmittance requirements of Standard No. 205, is to expressly prohibit any State from specifying some level of light transmittance other than the 70 percent specified in Standard No. 205 for new motor vehicles and new glazing for use in motor vehicles. Each of the individual States has authority to enforce identical standards (i.e., a minimum of 70 percent light transmittance) for new motor vehicles and new glazing for use in motor vehicles. Additionally, each of the individual States has the authority to regulate the modifications that may be made to vehicles by their owners and to establish requirements for vehicles to be registered in that State.

Having provided this background, we want to turn now to the results of our review of the North Carolina statute and regulations, along with your office's memorandum concluding that the statute is preempted by Federal law.

1. New vehicles and new glazing for use in vehicles. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted if it specifies any requirements other than the requirements of Standard No. 205 (minimum of 70 percent light transmittance) for new vehicles or for new glazing for use in motor vehicles. Section 108(a)(1) of the Safety Act and Standard No. 205 require all new vehicles and new glazing for use in motor vehicles to be delivered to the first purchaser with a light transmittance of at least 70 percent. Section 103(d) of the Safety Act expressly preempts any non-identical State standard on the subject of window tinting. Section 20-127(d) of the North Carolina statute appears to permit a single application of tinted film with a light transmittance of as little as 35 percent to be applied to vehicle glazing after factory delivery, but before sale to the public. This provision is preempted by Federal law, as is any other provision of North Carolina law which specifies that new glazing and glazing in new vehicles shall have some level of light transmittance other than the 70 percent minimum light transmittance requirement specified in Standard No. 205.

2. Modifications to vehicles and glazing by manufacturers, distributors, dealers and repair businesses after the first purchase of the vehicle or glazing in good faith for purposes other than resale. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted by Federal law if it permits the commercial installation of sunscreen materials so that the combination of the sunscreen material and the existing glazing no longer meet the 70 percent light transmittance requirement specified in Standard No. 205. This conclusion is based on the conflict between the North Carolina statute and the "render inoperative" provision of section 108(a)(2)(A) of the Safety Act. That provision prohibits any manufacturer, distributor, dealer, or repair business from rendering inoperative the compliance of a vehicle or an item of glazing with any of the requirements of Standard No. 205, including the minimum 70 percent light transmittance requirement.

Apart from the issue of preemption, I want to note that the provisions of State law cannot alter the effect of the "render inoperative" prohibition in Federal law. Regardless of how North Carolina law treats the combination of the glazing and the tinting, if it results in less than 70 percent light transmittance, a manufacturer, distributor, dealer, or repair business that installed such tinting on a vehicle would be liable for the Federal civil penalty discussed above.

3. Modifications to vehicles and glazing by individual owners themselves after the first purchase of the vehicle or glazing in good faith for purposes other than resale. As noted above, Federal law does not regulate modifications that individual owners themselves make to their vehicles or glazing after the first purchase in good faith for purposes other than resale, even if those modifications result in the vehicles or glazing no longer complying with the requirements of Standard No. 205, including the requirement for at least 70 percent light transmittance. The State of North Carolina is free to establish whatever restrictions, if any, it deems appropriate on individual owner modifications, without regard to the requirements of Standard No. 205. To the extent that the North Carolina statute seeks to address these individual owner modifications, it would not be preempted by Federal law.

4. Requirements for vehicles to be registered in the State of North Carolina. An individual State is free to establish whatever requirements it deems appropriate for vehicles to be registered in the State, provided that those State requirements would not prohibit the registration of vehicles that complied with the requirements of the Federal safety standards. Thus, the State of North Carolina is free to permit vehicles that do not comply with the requirements of Standard No. 205 to be registered in North Carolina. To the extent that the North Carolina window tinting statute seeks to establish requirements for vehicles to be registered in the State, it would not be preempted by Federal law.

We have also reviewed the May 6, 1988 letter from MEMA to Mr. Hiatt, in which MEMA discusses why it believes North Carolina's statute would not be preempted by Federal law. The MEMA discussion does not address the "render inoperative" provision in section 108(a)(2)(A) of the Safety Act, which prohibits commercial businesses from adversely affecting the compliance of elements of design installed in a vehicle or item of equipment in compliance with a safety standard, regardless of whether the vehicle is new or used. As was previously stated, Federal law prohibits any manufacturer, dealer, distributor, or repair business from ever installing window tinting material for the owner of a car if the combination of the original glazing and the tinting material results in less than 70 percent light transmittance through any window of the car.

To summarize, the North Carolina statute would be preempted to the extent that it seeks to permit some level of light transmittance other than that specified in Standard No. 205 for glazing in vehicles prior to the first purchase of the vehicles in good faith for purposes other than resale. Similarly, the statute would be preempted to the extent it seeks to permit the commercial installation of sunscreen materials with the result that the combination of the sunscreen material and the existing glazing no longer complies with the requirements of Standard No. 205. However, the North Carolina statute would not be preempted to the extent that it seeks to regulate the modifications that owners themselves can make to their vehicles or to the extent that it seeks to establish requirements for vehicles to be registered in the State, even if those requirements differ from those specified in Standard No. 205.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:205#VSA d:4/4/89

ID: 8746

Mr. William C. Longo
Chief Executive Officer
Ram Off Road Accessories
P.O. Box 63915
Los Angeles, CA 90063

Dear Mr. Longo:

This responds to your letter concerning possible liability involved with marketing a product you manufacture, particularly with respect to installation of the product on vehicles equipped with Supplemental Restraint Systems (SRS), also known as air bags. I regret the delay in responding to your letter. In a June 16, 1993 phone conversation with Mary Versailles of my staff, Troy Wood explained that the products are aftermarket decorative sheet metal accessories that attached to the exterior of vehicles. Your company also makes replacement bumpers for vehicles. As Ms. Versailles explained on the phone, this letter will discuss Federal laws which might be affected by the addition of your products on vehicles equipped with air bags. Potential liability questions should be addressed to a private attorney who is familiar with tort law.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. '1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish Standard No. 208, Occupant Crash Protection (49 CFR '571.208). Among other things, Standard No. 208 requires that cars be equipped with automatic crash protection. "Automatic crash protection" means that a

vehicle is equipped with occupant restraints that require no action by vehicle occupants. The performance of automatic crash protection is dynamically tested, that is, the automatic systems are required to comply with certain injury reduction criteria as measured by test dummies in a barrier crash test at speeds up to 30 mph. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used). A new Federal statutory requirement will make air bags mandatory in all cars and light trucks by the late 1990's.

Standard No. 208 applies to new vehicles; therefore, if your products are installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including Standard No. 208, with your product installed. However, as explained in the phone conversation with Ms. Versailles of my staff, we understand your products are intended as items of after-market equipment.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, a provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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.

Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation. The "render inoperative" provision would prohibit a commercial business from installing your product on a vehicle equipped with an air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208 or any other safety standard. For example, the installer would have to be careful not to activate a sensor while attaching your product, causing the air bag to deploy.

Please note that the "render inoperative" prohibition would apply to a manufacturer, distributor, dealer, or repair business installing your product, and not to your company as the manufacturer of the product. Also note that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your product on their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref: 208 d:9/29/93

ID: 1984-3.29

TYPE: INTERPRETATION-NHTSA

DATE: 09/24/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Thomas D. Turner -- Manager, Engineering Services, Blue Bird Body Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of August 15, 1984, concerning the application of Standard No. 301, Fuel System Integrity, to school buses with a gross vehicle weight rating of more than 10,000 pounds. You specifically asked about the effect on certification of adding auxiliary equipment to the fuel system. As explained below, you are correct in your understanding that the vehicle with any auxiliary equipment installed on it must be certified as complying with the standard.

You explained that you are receiving more requests for school buses equipped with auxiliary fuel-fired heaters and air conditioners. Those auxiliary devices would be connected to the fuel tank or line of the vehicle. You further explained that the typical auxiliary heating and air-conditioning include fuel powered units mounted to the outside of the chassis frame and/or the underside of the body and located between the outside of the chassis frame and the outside body sheetmetal, where it could be impacted by a moving barrier during the crash test required by Standard No. 301.

Standard No. 301 sets requirements for the integrity of the entire fuel system used in motor vehicles. If auxiliary fuel-powered equipment is installed in a vehicle before its sale to its first purchaser for purposes other than resale, the vehicle with the auxiliary equipment installed must be certified as complying with Standard No. 301.

You explained that because of the variety of different auxiliary fuel systems and the different sizes, types, and configurations of vehicle involved, you believe it is impracticable and economically prohibitive to conduct full scale crash tests. Therefore, you asked about alternative methods of determining compliance. As with all of the agency's standards, Standard No. 301 sets forth the test procedures that the agency will use to determine if a vehicle complies with the performance requirements of a standard. A manufacturer is not required to do crash testing to verify compliance; instead it may rely on such things as engineering analysis or computer simulations to establish that its vehicle conforms with the standard.

Section 108(b)(2) of the National Traffic and Motor Vehicle Safety Act requires a manufacturer to show that it has exercised due care in making its certification that the vehicle conforms with all applicable standards. Whether a manufacturer has exercised due care can only be made on a case-by-case basis. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations on current technology, the availability of test equipment, the size of the manufacturer and above all the diligence evidenced by the manufacturer. The agency would look to such things as the drawing, engineering instructions, and quality assurance procedures that you mentioned in order to make a determination of due care. Although an inspection by an independent laboratory is not required, the existence of such testing would be considered in determining whether a manufacturer has exercised due care.

Finally you asked if any manufacturers are currently relying on methods other than crash testing to determine whether their vehicles conform with our standard. Since manufacturers are required to self-certify their vehicles and are not required to receive any approval from this agency before making their certifications, I cannot answer your question. I note that in instances where there has been a question of whether a vehicle complies with Standard No. 301, manufacturers have provided crash test data to the agency to demonstrate their compliance with the standard.

If you have any further questions, please let me know.

Sincerely,

BLUE BIRD BODY COMPANY

August 15, 1984

OCC-1058

Frank Berndt Chief Counsel National Highway Traffic Safety Administration

Dear Mr. Berndt:

Blue Bird Body Company is a major manufacturer of school and non-school buses which are sold throughout the U.S. and Canada. For years, on non-school buses, we have offered air conditioning as a regular option and have provided auxiliary fuel fired heaters upon request on a temporary option basis. The market place has recently been expressing a need for these features on school buses. We have received requests for auxiliary fuel fired heaters from several northern states and Canadian provinces. The need for auxiliary heating capability is increasing with the increased popularity of diesel powered school buses, which have less heat available for heating and defrosting of the driver and passenger compartments.

The demand for air conditioning in school buses is naturally coming from the warmer climate states, particularly Florida, and is primarily for lift buses used in transporting the handicapped. These vehicles often travel long routes and the stops to load and unload passengers are often quite lengthy. As a result the students often spend a lot of time on the bus and many of the special students are more sensitive to excessive heat than non-handicapped students.

I have presented this background and brief explanation because we at Blue Bird, strongly believe that the need for auxiliary heating and air conditioning on school buses is real and justified, and has significant bearing on the safety and well being of the students being transported. In order to provide these needed features on new school buses in an efficient and cost effective manner, we as body manufacturers must be able to install available heating and air-conditioning units and systems at the factory, and certify the completed vehicle as meeting all applicable Federal Motor Vehicle Safety Standards. The typical and commonly available auxiliary heating systems and air conditioning systems include fuel powered units mounted to the outside of the chassis frame and/or the underside of the body and located between the outside of the chassis frame and the outside body sheetmetal, or skirt, as it is commonly called. With the variety of systems available that could be requested by the customer, the different sizes, types, and configurations of vehicles that are involved and the variety of possible mounting locations on each type vehicle, the combinations of equipment involved is potentially quite large. Our primary concern is with FMVSS 301-75 as it applies to school buses and auxiliary equipment provided on school buses that have their own fuel systems.

It is our understanding that FMVSS 301-75 as it applies to school buses with GVWR's of more than 10,000 pounds is a vehicle performance standard, and that the vehicle, including any and all auxiliary equipment installed on the vehicle, must meet FMVSS 301-75 requirements and be certified as meeting FMVSS 301-75. In other words, if we choose to manufacture and sell school buses with an auxiliary heater or air conditioner mounted in the skirt such that it could be impacted by the moving contoured barrier as specified in Section S6.5, we would need to be sure that the fuel system of the auxiliary heater or air conditioner would not cause the vehicle to exceed the fuel spillage requirements of S5.5 and be capable of documenting our compliance. We request your confirmation that the fuel system of an auxiliary heater or air conditioner installed on a new school bus is covered by FMVSS 301-75, and that there are no exemptions or interpretations that exclude such systems from the standard's requirements.

Due to the variety of systems and combinations discussed previously and the continual evolution of chassis, body and heater/air conditioner designs and manufacturing procedures, we feel it is impractical and economically prohibitive to conduct full scale vehicle crash tests. We, therefore, wish to pursue alternate methods of certification documentation. One particular system we have looked at is a skirt mounted air conditioner with a diesel engine. The diesel fuel system of the vehicle is certified as meeting FMVSS 301-75. The engine on the air conditioner shares the same fuel tank as the vehicle's engine and, thus, only the fuel lines, fuel pump, filler filter, and the air conditioner's engine itself pose a concern relating to FMVSS 301-75 compliance. Preliminary tests have shown the air conditioner fuel system contains only about 3 1/2 ounces of fuel and the fuel pump is controlled by an oil pressure switch on the air conditioner's engine. We feel that by locating the fuel pump and fuel filter inside the chassis frame where they are extremely well protected, and by using high quality flexible fuel lines carefully routed and supported to prevent them from being damaged, we can easily maintain assurance of compliance with FMVSS 301-75. On such a system, would the agency accept Engineering documentation in the form of drawings. Engineering instructions, and Quality Assurance procedures in lieu of actual crash test reports as a suitable basis for certification? Would it be necessary or desirable to have independent laboratory inspection and approval under such a method of certification? Are any manufacturers using this type of certification, and if so, could we be provided with examples of the documentation used?

Blue Bird Body Company believes in its motto that, "Your Children's Safety is Our Business". Blue Bird also believes in improving its products, providing the safest, most modern and most efficient products possible, and in meeting our customer's needs whenever possible. To this end we appreciate any assistance the agency can provide to enable us to offer auxiliary heaters and air conditioning on new school buses. I have taken the liberty of sending three copies of this letter to Mr. Francis Armstrong and to Mr. Ralph Hitchcock, since I feel input from both Enforcement and Rulemaking would be beneficial in addressing this issue.

Thank you very much for your consideration of this matter.

Thomas D. Turner Manager Engineering Services

c: FRANCIS ARMSTRONG (3) -- OFC. OF VEHICLE SAFETY COMPLIANCE; RALPH HITCHCOCK (3) -- OFC. OF VEHICLE SAFETY STDS.

ID: 7436

Mr. Peter E. Reinert
Counsel - Transaction
General Electric Company
One Plastics Avenue
Pittsfield, MA 01201

Dear Mr. Reinert:

This responds to your letter requesting an interpretation of Standard No. 205, Glazing Materials (49 CFR 571.205). Specifically, you asked about the certification and marking responsibilities of your company, General Electric (GE), and your distributors under section S6 of Standard No. 205. This interpretation is based on my understanding of the statements in your letter as well as statements made by GE's representatives Mr. Timothy Commons and Mr. Bruce Torry in a July 8, 1992 meeting with Mr. Clark Harper of this agency's Office of Vehicle Safety Standards and Mr. Marvin Shaw of my staff.

We understand that GE manufactures large sheets of LEXAN polycarbonate which are used in both motor vehicle and non- vehicle applications. You explained that under a contractual agreement with GE, your distributors have agreed to mark the LEXAN sheet with GE's manufacturer code mark and the symbol DOT (which you refer to as the DOT number). In other words, GE is sending LEXAN sheets without the manufacturer code mark and the symbol DOT to its distributors who then mark the sheets with this information before shipping them to their motor vehicle customers.

You asked whether shipping LEXAN sheets without the manufacturer code mark and symbol DOT to GE's distributors is consistent with GE's responsibilities as a prime glazing material manufacturer having its own DOT number. I note that Mr. Commons and Mr. Torry raised additional questions about GE's certification responsibilities under Standard No. 205. Specifically, they questioned whether GE was a manufacturer of raw material rather than a prime glazing material manufacturer; and if GE were not a prime glazing material manufacturer, whether each of GE's distributors would be required to mark the LEXAN sheets with its own DOT number rather than GE's number. Your company's questions are addressed below.

Standard No. 205 specifies performance requirements for glazing for use in motor vehicles. Section S6 of Standard No. 205 establishes marking and certification requirements for manufacturers and distributors of glazing materials. Different marking and certification requirements apply depending upon whether an entity is a prime glazing material manufacturer or a manufacturer that cuts sections of glazing material to which Standard No. 205 applies. Further distinction in certification requirements for prime manufacturers depends on whether the glazing is designed for use in a specific motor vehicle or camper, or whether the glazing is designed to be cut into components for use in motor vehicles or items of motor vehicle equipment. None of the marking and certification requirements would apply to manufacturers of raw materials.

Section S6.1 defines a "prime glazing material manufacturer" as "one who fabricates, laminates, or tempers the glazing material." If an entity performs any one of these operations, it must comply with the marking and certification requirements set forth in S6.1 through S6.3 of Standard No. 205.

Before addressing the question posed in your letter, I will respond to your representatives' question concerning whether GE might be a manufacturer of a raw material and thus not be subject to Standard No. 205's marking and certification requirements. In support of this view, they stated that distributors frequently undertake what they termed significant fabricating operations (e.g., drilling, routing, and polishing the glazing) beyond merely cutting the glazing, and thus in such situations should be considered the "prime glazing material manufacturer."

Notwithstanding your representatives' contentions, we consider GE to be the prime glazing material manufacturer in the situation at hand. GE's activities involve a fundamental manufacturing operation that constitutes fabrication of glazing. In contrast, the distributor's operations, though arguably more extensive than mere cutting, constitute relatively minor finishing operations to an item of glazing that has been fabricated by another company. Since GE fabricates the glazing, it is the prime glazing material manufacturer under S6.1. This determination renders moot your representatives' follow-up question about the distributor's marking responsibilities if GE were not a prime glazing material manufacturer.

I will now summarize the marking and certification requirements that apply to GE, as a prime glazing material manufacturer, and to its distributors. S6.1 requires every prime glazing material manufacturer to mark all glazing materials it manufactures with the following information in accordance with section 6 of the American National Standard (ANS) Z26: (1) the words "American National Standard" or the characters "AS," (2) a number identifying the item of glazing, (3) a model number assigned by the manufacturer that identifies the type of construction of the glazing material, and (4) the manufacturer's distinctive designation or trademark.

In addition to the information required by S6.1, if an item of glazing material is designed to be used in a specific motor vehicle, then S6.2 requires each prime glazing material manufacturer to certify such an item of glazing with the symbol "DOT" and a manufacturer's code mark assigned by this agency. The purpose of requiring the manufacturer's code mark is to help NHTSA identify the actual manufacturer of the glazing material for the purpose of defect and noncompliance recall campaigns. Section S6.3 requires each prime glazing material manufacturer to certify compliance with Standard No. 205 for each piece of glazing designed to be cut into components for use in motor vehicles pursuant to the requirements of section 114 of the Safety Act. Under section 114, certification of an item of glazing "may be in the form of a label or tag on such item or on the outside of a container in which such item is delivered."

Sections S6.4 and S6.5 set forth requirements that apply to each manufacturer or distributor who cuts a section of glazing material to which Standard No. 205 applies for use in a motor vehicle or camper. Section S6.4 requires the manufacturer or distributor to mark that material in accordance with section 6 of ANS Z26. Section S6.5 requires the manufacturer or distributor to certify that its product complies with Standard No. 205, pursuant to section 114.

You asked whether shipping LEXAN sheets without GE's manufacturer code mark and the symbol DOT to GE's distributors is consistent with GE's responsibilities as a prime glazing material manufacturer that has its own DOT number. Under the above requirements, the only type of glazing that a prime glazing material manufacturer is required to mark with its manufacturer code mark and the symbol "DOT" is glazing designed as a component of a specific motor vehicle or camper. GE, as a prime glazing material manufacturer, is not required to mark glazing with the symbol "DOT" and its manufacturer's code mark if such glazing is not designed as a component of a specific motor vehicle or camper.

As for sheets of glazing that a manufacturer or distributor will cut into components for motor vehicles, GE and GE's distributors may contractually agree to have the distributor mark the LEXAN sheets and glazing cut from such sheets with GE's manufacturer code mark. However, there is no requirement for either GE or its distributors to so mark the glazing.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel Enclosure

Ref: 205 d:9/4/92

ID: nht92-4.15

DATE: September 4, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Peter E. Reinert -- Counsel - Transaction, General Electric Company

TITLE: NONE

ATTACHMT: Attached to letter dated 6/24/92 from Peter E. Reinert to Paul Jackson Rice (OCC-7436)

TEXT:

This responds to your letter requesting an interpretation of Standard No. 205, Glazing Materials (49 CFR S571.205. Specifically, you asked about the certification and marking responsibilities of your company, General Electric (GE), and your distributors under section S6 of Standard No. 205. This interpretation is based on my understanding of the statements in your letter as well as statements made by GE's representatives Mr. Timothy Commons and Mr. Bruce Torry in a July 8, 1992 meeting with Mr. Clark Harper of this agency's Office of Vehicle Safety Standards and Mr. Marvin Shaw of my staff.

We understand that GE manufactures large sheets of LEXAN polycarbonate which are used in both motor vehicle and non-vehicle applications. You explained that under a contractual agreement with GE, your distributors have agreed to mark the LEXAN sheet with GE's manufacturer code mark and the symbol DOT (which you refer to as the DOT number). In other words, GE is sending LEXAN sheets without the manufacturer code mark and the symbol DOT to its distributors who then mark the sheets with this information before shipping them to their motor vehicle customers.

You asked whether shipping LEXAN sheets without the manufacturer code mark and symbol DOT to GE's distributors is consistent with GE's responsibilities as a prime glazing material manufacturer having its own DOT number. I note that Mr. Commons and Mr. Torry raised additional questions about GE's certification responsibilities under Standard No. 205. Specifically, they questioned whether GE was a manufacturer of raw material rather than a prime glazing material manufacturer; and if GE were not a prime glazing material manufacturer, whether each of GE's distributors would be required to mark the LEXAN sheets with its own DOT number rather than GE's number. Your company's questions are addressed below.

Standard No. 205 specifies performance requirements for glazing for use in motor vehicles. Section S6 of Standard No. 205 establishes marking and certification requirements for manufacturers and distributors of glazing materials. Different marking and certification requirements apply depending upon whether an entity is a prime glazing material manufacturer or a manufacturer that cuts sections of glazing material to which Standard No. 205 applies. Further distinction in certification requirements for prime manufacturers depends on whether the glazing is designed for use in a specific motor vehicle or camper, or whether the glazing is designed to be cut into components for use in motor vehicles or items of motor vehicle equipment. None of the marking and certification requirements would apply to manufacturers of raw materials.

Section S6.1 defines a "prime glazing material manufacturer" as "one who

fabricates, laminates, or tempers the glazing material." If an entity performs any one of these operations, it must comply with the marking and certification requirements set forth in S6.1 through S6.3 of Standard No. 205.

Before addressing the question posed in your letter, I will respond to your representatives' question concerning whether GE might be a manufacturer of a raw material and thus not be subject to Standard No. 205's marking and certification requirements. In support of this view, they stated that distributors frequently undertake what they termed significant fabricating operations (e.g., drilling, routing, and polishing the glazing) beyond merely cutting the glazing, and thus in such situations should be considered the "prime glazing material manufacturer."

Notwithstanding your representatives' contentions, we consider GE to be the prime glazing material manufacturer in the situation at hand. GE's activities involve a fundamental manufacturing operation that constitutes fabrication of glazing. In contrast, the distributor's operations, though arguably more extensive than mere cutting, constitute relatively minor finishing operations to an item of glazing that has been fabricated by another company. Since GE fabricates the glazing, it is the prime glazing material manufacturer under S6.1. This determination renders moot your representatives' follow-up question about the distributor's marking responsibilities if GE were not a prime glazing material manufacturer.

I will now summarize the marking and certification requirements that apply to GE, as a prime glazing material manufacturer, and to its distributors. S6.1 requires every prime glazing material manufacturer to mark all glazing materials it manufactures with the following information in accordance with section 6 of the American National Standard (ANS) Z26: (1) the words "American National Standard" or the characters "AS," (2) a number identifying the item of glazing, (3) a model number assigned by the manufacturer that identifies the type of construction of the glazing material, and (4) the manufacturer's distinctive designation or trademark.

In addition to the information required by S6.1, if an item of glazing material is designed to be used in a specific motor vehicle, then S6.2 requires each prime glazing material manufacturer to certify such an item of glazing with the symbol "DOT" and a manufacturer's code mark assigned by this agency. The purpose of requiring the manufacturer's code mark is to help NHTSA identify the actual manufacturer of the glazing material for the purpose of defect and noncompliance recall campaigns. Section S6.3 requires each prime glazing material manufacturer to certify compliance with Standard No. 205 for each piece of glazing designed to be cut into components for use in motor vehicles pursuant to the requirements of section 114 of the Safety Act. Under section 114, certification of an item of glazing "may be in the form of a label or tag on such item or on the outside of a container in which such item is delivered."

Sections S6.4 and S6.5 set forth requirements that apply to each manufacturer or distributor who cuts a section of glazing material to which Standard No. 205 applies for use in a motor vehicle or camper. Section S6.4 requires the manufacturer or distributor to mark that material in accordance with section 6 of ANS Z26. Section S6.5 requires the manufacturer or distributor to certify that its product complies with Standard No. 205, pursuant to section 114.

You asked whether shipping LEXAN sheets without GE's manufacturer code mark and the symbol DOT to GE's distributors is consistent with GE's responsibilities as a prime glazing material manufacturer that has its own DOT number. Under the above requirements, the only type of glazing that a prime glazing material manufacturer is required to mark with its manufacturer code mark and the symbol "DOT" is glazing designed as a component of a specific motor vehicle or camper. GE, as a prime glazing material manufacturer, is not required to mark glazing with the symbol "DOT" and its manufacturer's code mark if such glazing is not designed as a component of a specific motor vehicle or camper.

As for sheets of glazing that a manufacturer or distributor will cut into components for motor vehicles, GE and GE's distributors may contractually agree to have the distributor mark the LEXAN sheets and glazing cut from such sheets with GE's manufacturer code mark. However, there is no requirement for either GE or its distributors to so mark the glazing.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Enclosure

ID: 11361RWKM

Ms. Linda Stroud
Used Motor Vehicle and Parts Commission
Louisiana Department of Economic Development
3132 Valley Creek Drive
Baton Rouge, LA 70808

Dear Ms. Stroud:

This responds to your letter addressed to Walter Myers of my staff in which, referring to previous telephone conversations with Mr. Myers, you asked for written confirmation of several statements. I apologize for the delay in responding.

You requested confirmation that a dealer can sell new trailers either with new tires or no tires, but not with used tires. You also sought confirmation that if a manufacturer ships trailers with used tires to dealers, the dealer would have to remove the used tires prior to retail sale and the purchaser would be responsible for installing his/her own tires. You also asked certain other questions which I will discuss below.

Pursuant to your telephone conversation with Mr. Myers on October 5, 1995, Mr. Myers sent you a copy of Federal motor vehicle safety standard (FMVSS) No. 120, Tire selection and rims for motor vehicles other than passenger cars, and copies of the interpretative letters previously issued by this office that are listed and synopsized in the Appendix to this letter.

By way of background, in general, paragraph S5.1.1 of FMVSS No. 120 requires that tires installed on new vehicles other than passenger cars, which includes trailers, must meet the requirements of either FMVSS No. 109, New pneumatic tires, or FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars. As an exception, however, paragraph S5.1.3 of FMVSS No. 120 provides that instead of tires that meet the requirements of FMVSS No. 119, new trucks, buses, and trailers may be equipped with used or retreaded tires owned or leased by the vehicle purchaser and installed at the place of manufacture of the vehicle. Paragraph S5.1.3 also requires that the sum of the maximum load ratings meets the requirements of paragraph S5.1.2 and further requires that the tires were originally manufactured to comply with FMVSS No. 119 as evidenced by the DOT symbol. There is no requirement, however, that a vehicle subject

to FMVSS No. 120 must be equipped with tires and wheels at the time of sale (see letter to Mr. Steve Thomas, dated April 14, 1993, listed in Appendix).

Your letter stated that your main problem seems to be manufacturers who ship new trailers equipped with used tires. Assuming the conditions of S5.1.3 of FMVSS No. 120 are not met, that act is prohibited by 49 U.S. Code '30112 (copy enclosed), which provides in pertinent part:

[With certain exceptions] a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title.

Thus, manufacturers cannot ship and distributors and dealers cannot sell vehicles or equipment that do not comply with all applicable FMVSSs. As provided in paragraph S5.1.3 of FMVSS No. 120, used or retreaded tires can only be installed at the place of manufacture of the vehicle and only if owned or leased by the vehicle purchaser.

With respect to used or retreaded tires, distributors and dealers cannot install such tires whether or not the tires are owned or leased by the vehicle purchaser. If a distributor or dealer receives a trailer from the manufacturer equipped with used or retreaded tires that were installed not in accordance with paragraph S5.1.3, the distributor or dealer must either replace those tires with new tires or sell the trailer without tires, leaving tire installation to the vehicle purchaser.

Turning now to your specific questions, I will answer them in turn:

1. What is the definition of a trailer manufacturer? A "manufacturer" is defined in 49 U.S. Code '30102(a)(5) as a person:

(A) manufacturing or assembling motor vehicles or motor vehicle equipment; or

(B) importing motor vehicles or motor vehicle equipment for resale.

We define a "trailer" in 49 CFR 571.3 as:

[A] motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another vehicle.

Under these definitions, a trailer manufacturer is one who manufactures or assembles trailers, as distinguished from a distributor who primarily sells and distributes motor vehicles and motor vehicle equipment for resale (in other words, a wholesaler), or a dealer, who primarily sells and distributes motor vehicles and motor vehicle equipment at retail.

2. Is a Utility Trailer included in this safety standard [FMVSS No. 120] or does it relate only to certain size trailers? Paragraph S3, Application, of FMVSS No. 120 provides that the standard applies to "multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles, . . ." (emphasis added). Neither the standard nor the trailer definition limits its application to trailers. Accordingly, all new trailers of any size, use, weight, or configuration, including new utility trailers, are subject to the requirements of the standard.

3. Could you indicate those trailers which are governed by this regulation? As indicated in the answer to question 2 above, all new trailers, including utility trailers, are included in the requirements of FMVSS No. 120.

4. Is there a specific length or width that falls under this safety standard? The answer is no. As indicated above, trailers are subject to the requirements of FMVSS No. 120 without limitation.

I hope this information is helpful. Should you have further questions or require additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure

Ref:120 d:2/8/96

ID: 2256y

Ms. Linda L. Conrad
Nives Ford, Inc.
15690 South Harlem Avenue
Orland Park, IL 60462

Dear Ms. Conrad:

This responds to your letter asking what legal obligations are imposed on car dealers to replace air bags on used vehicles accepted as trade-ins. Your letter explained that your dealership has received, as a trade-in, a 1989 car that had a driver-side air bag as original equipment. According to your letter, the car had been in a crash and the air bag was deployed. Hence, when this car was taken in trade by your dealership, its air bag was not functional. You asked whether any law requires you to replace the deployed air bag with a new air bag before selling the car.

In response to your question, we can advise you as follows: (1) Federal law does not require a car dealer to replace a deployed air bag in a used vehicle; (2) a dealer may be required by State law to replace that equipment, or be liable for failure to do so; and (3) our agency strongly encourages dealers to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants.

We will first address the Federal legal issues, since our agency administers the Federal vehicle safety law. The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised this authority to issue Standard No. 208, Occupant Crash Protection (49 CFR /571.208). Among other things, Standard No. 208 requires that cars be equipped with automatic crash protection. "Automatic crash protection" means that a vehicle is equipped with occupant restraints that require no action by vehicle occupants. The performance of automatic crash protection is dynamically tested, that is, the automatic systems are required to comply with certain injury reduction criteria as measured by test dummies in a barrier crash test at speeds up to 30 mph. The requirement for automatic crash protection was phased-in for passenger cars, beginning with 1987 model year new cars. That phase-in is now completed, and all passenger cars manufactured on or after September 1, 1989 are required to be equipped with automatic crash protection.

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." (Emphasis added) Because of this statutory requirement, your dealership cannot legally sell or offer for sale a new car equipped with an air bag if you know that the air bag has been deployed.

However, section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)) provides that the prohibitions in section 108(a)(1)(A) "shall not apply to the sale, offer for sale, or the introduction or delivery for introduction in interstate commerce of any motor vehicle after the first purchase of it in good faith for purposes other than resale." In other words, once the 1989 Chrysler LeBaron described in your letter was sold and delivered to its first retail purchaser, the vehicle was no longer required by Federal law to comply with Standard No. 208.

After the first purchase of a vehicle in good faith for purposes other than resale, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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, unless such manufacturer, distributor, dealer, or repair business reasonably believes that such vehicle ... will not be used (other than for testing or similar purposes in the course of maintenance or repair) during the time such device or element of design is rendered inoperative.

In the case of passenger cars equipped with air bags pursuant to Standard No. 208, this section would prohibit any manufacturer, distributor, dealer, or repair business from removing, disabling, or otherwise "rendering inoperative" the air bags, except as needed to make repairs to the car. When any such repairs are completed, the car must be returned to the customer with the air bag capable of functioning at least as well as it was able to do when the car was received by the manufacturer, distributor, dealer or repair business. Any violations of this "render inoperative" prohibition in the Safety Act would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note that the "render inoperative" provision does not impose an affirmative duty on dealers to replace equipment that was previously removed by someone else, or to repair equipment that was damaged in a crash. Thus, if your dealership purchases a used car that was originally equipped with an air bag pursuant to Standard No. 208, and the air bag was deployed before your dealership took possession of the car, Federal law does not require your dealership to replace the deployed air bag with a functioning air bag before you resell the car.

Despite the absence of any requirement in Federal law, dealers may still be required by State law to replace deployed air bags, or they may be liable for failing to do so. You should be aware that the individual States have authority to require that used vehicles have certain equipment installed and functioning when the used vehicles are sold. You may wish to contact the State of Illinois to learn if there are any applicable laws or regulations that would apply in these circumstances. Additionally, you may wish to consult a private attorney familiar with the law in the State of Illinois regarding potential liability in tort for your dealership in these circumstances. While such issues are beyond this agency's area of legal expertise, we do note that every State provides for some degree of civil liability for consumer products and repair work. The potential for finding a car dealer liable may be greater when that dealer sells a used vehicle without one of the originally-installed safety systems intact and functional.

As a final note, and in addition to the legal considerations, it is NHTSA's strong policy recommendation that dealers always replace air bags following deployment, unless the vehicle is to be junked. Indeed, we have long recommended the repair, restoration, or replacement of all safety systems that may have been damaged in a crash, including the safety belts and brakes, as well as the air bag systems now being installed in passenger cars.

While air bags are in some respects "supplemental" to safety belts, in that the air bags provide additional protection, the air bags are nevertheless vitally important to the vehicle's overall capability to protect occupants in a crash. Those vehicles are designed so that the air bag will always work, even if the safety belt is not worn; and the safety belt system is designed to work in conjunction with the air bag in serious frontal crashes. Additionally, the consumer information available to the purchaser of the used car described in your letter -- in the vehicle owner's manual, from the carmaker and insurance companies, and from NHTSA and other safety groups -- would identify the car as one equipped with a driver-side air bag. The purchaser may well expect a used car to provide the safety equipment that was provided by the original manufacturer.

In short, from the standpoints of auto safety, dealer risk management, consumer protection, customer relations, and good business practices, NHTSA strongly advocates the replacment of deployed air bags.

I hope this information is useful. If you have any further questions or need additional information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:VSA#208 d:l/l9/90