ID: nht95-1.73

TYPE: INTERPRETATION-NHTSA

DATE: February 17, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Brigitte Neifer -- Sekurit Saint-Gobain Deutschland GmbH & Do. KG

TITLE: None

ATTACHMT: ATTACHED TO 10/4/94 TELEFAX FROM BRIGITTE NEIFER TO DAN COLHEN (OCC 10413)

TEXT: Your telefax to Mr. Dan Cohen of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Standards has been forwarded to my office for reply. I apologize for the delay in our response.

You asked about two topics: the agency's plans for further rulemaking related to Docket 89-15, and NHTSA's regulations related to testing for compliance with an industry standard that is incorporated by reference into a Federal Motor Vehicle Safety Stand ard (FMVSS).

Issue One: Docket 89-15 You first asked whether NHTSA is planning any further rulemaking activity with respect to NHTSA Docket No. 89-15. Docket No. 89-15, which began January 22, 1992 (57 FR 2496), pertains to a notice of proposed rulemaking that addresses the light transmitt ance requirements for glazing materials used in motor vehicles. NHTSA has not reached a final decision on this proposed rulemaking. Any questions you may have about this rulemaking can be addressed to Mr. Patrick Boyd, Crash Avoidance Division, National Highway Traffic Safety Administration (NHTSA), 400 Seventh Street, S.W., Washington D.C. 20590. Mr. Boyd's telephone number is (202) 366-6346.

Issue Two: Establishing Compliance with FMVSS No. 205 You ask several questions about FMVSS No. 205, "Glazing Materials." You first ask for confirmation that the "5-year rhythm of renewal" was "an AAMVA [American Association of Motor Vehicle Administrators] procedure and not an official requirement." Your u nderstanding is correct. Moreover, this program, which was administered by AAMVA and which was never "officially" NHTSA's, has been discontinued. You can contact the AAMVA at 4600 Wilson Blvd., Arlington, VA 22205, telephone (703) 522-4200 for further information.

You also requested information about NHTSA's requirements related to compliance with FMVSS No. 205 and the material it incorporates (ANSI Z26.1, "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways"). You state that you "intend to have [your] products regularly tested by independent laboratories" and ask whether "DOT inspectors in [the] USA will accept (cars equipped with) our glazings when accompanied only with a test report."

Some background information about NHTSA would be helpful in answering your question. Congress has authorized NHTSA to issue FMVSSs applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, does not approve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Thus, there are no "DOT inspectors" that are charged with either accepting or rejecting vehicles or equipment certified as meeting the FMVSSs, prior to the first sale of the product.

NHTSA does test new vehicles and equipment for compliance with the FMVSSs by purchasing products on the market. Each of NHTSA's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the ve hicle or equipment being tested for compliance with the particular safety standard. NHTSA precisely follows each of the specified test procedures and conditions when conducting its compliance testing. n1 However, manufacturers are not required to test t heir products only in the manner specified in the relevant safety standard. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency acco rding to the procedures specified in the standard.

n1 Since FMVSS No. 205 incorporates ANSI's Z26.1 by reference, the test procedures and performance requirements set forth in ANSI Z26 are considered to be part of FMVSS No. 205.

If NHTSA testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, in accordance with 49 U.S.C. 30118 and 30120, the manufacturer is required to notify owners and remedy the noncompliance at no cost to the owners. The manufacturer is also subject to civil penalties unless it can estab lish that it exercised "reasonable care" in the design and manufacturer of the product and in the evaluation (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance. n2

n2 While the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties for the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance free of charge.

Your use of independent test laboratories to evaluate the performance of your product could support an initial showing of "reasonable care." However, the agency is unable to determine what efforts constitute "reasonable care" outside of the course of a s pecific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer.

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

ID: nht89-2.100

TYPE: Interpretation-NHTSA

DATE: September 18, 1989

FROM: Aggie Szilagyi -- Senior Counsel, New Jersey State Legislature, Office of Legislative Services

TO: Stephen P. Wood -- Acting Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1-14-91 from Paul J. Rice to Aggie Szilagyi (A37; Part 541; CSA S 611)

TEXT:

On behalf of Senator Ronald L. Rice, sponsor of the enclosed legislation now pending in the New Jersey Legislature, I am writing to request an opinion on the issue of federal preemption specifically as it concerns the Motor Vehicle Theft Law Enforcement Act of 1984, Pub. L. No. 98-547, 15 U.S.C.A. S2021 et seq. and Senate Bill 3434 which would require certain new automobiles to be equipped with anti-theft devices beginning in 1992.

At the time the Senate Law, Public Safety and Defense Committee was considering Senate Bill 3434 back in March of this year, I spoke with Mr. Stanley Feldman of your offices concerning preemption under the Motor Vehicle Theft Law Enforcement Act. Mr. Fe ldman, after briefly reviewing the act, its legislative history, and the rules and regulations promulgated pursuant to it, indicated that the extent of the federal preemption and its affect on S3434 was not immediately clear and he was unable to find any NHTSA letter opinion rendering an interpretation on the matter. He went on to indicate that an opinion from NHTSA may be obtained by writing to you.

Thank you very much for your prompt consideration of this request. If you have any questions, please do not hesitate to contact me at (609) 984-0231.

Attachment

SENATE LAW, PUBLIC SAFETY AND DEFENSE COMMITTEE STATEMENT TO SENATE, No. 3434 with Senate committee amendments STATE OF NEW JERSEY DATED: MAY 22, 1989 The Senate Law, Public Safety and Defense Committee favorably reports Senate Bill No. 3434 with amendments.

As amended, this bill requires that beginning with the 1992 model year, a newly manufactured passenger automobile sold or leased in this State is to be equipped with a passive anti-theft device if the automobile is priced at or over the estimated median manufacturer's suggested retail price as set by the Division of Consumer Affairs. Newly manufactured passenger automobiles that are not equipped with such a device may not be registered

in this State.

A passive anti-theft device is defined as any device or system, approved by the Director of the Division of Motor Vehicles, which automatically causes an alarm or ignition cut-off to engage when the motor of a vehicle is turned off. The purpose of these devices is to reduce or deter vehicle thefts.

Any person who violates the prohibition against selling, offering to sell, or leasing a passenger automobile which is not equipped with an anti-theft device to an individual who is required to register that vehicle in this State is subject to a fine of n ot less than $200 or more than $500 per offense.

The committee amended the bill to limit the requirement in the bill to passenger automobiles priced at or over the estimated manufacturer's suggested retail price as set by the Division of Consumer Affairs for all passenger automobiles sold in this State .

The committee amended the bill at the sponsor's request to provide a maximum income tax credit of $100 for a passive anti-theft device installed in a motor vehicle made before model year 1992 and a maximum income tax credit of $500 for a signal-activated vehicle recovery system.

According to the most recent New Jersey Uniform Crime Report compiled by the Attorney General, 59,376 automobiles were stolen in 1987. Based on those statistics, there were more than 162 cars stolen every day (one automobile theft every 8.9 minutes). M otor vehicle theft is a serious problem in this State and the purpose of this bill is to address that problem.

(FIRST REPRINT) SENATE, No. 3434 STATE OF NEW JERSEY INTRODUCED APRIL 17 1989 By Senator RICE AN ACT requiring passive anti-theft devices on certain motor vehicles and Supplementing Title 39 of the Revised Statutes (l) and chapter 4 of Title 54A of the New Jersey Statutes (l).

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

1. a. No person shall sell, offer to sell or lease a passenger automobile manufactured for the 1992 model year or any model year thereafter (l) which is at or over the estimated median manufacturer's suggested retail price as set by the Division of Consu mer Affairs pursuant to section 2 of this act (1) to a purchaser or lessee who is required to register that passenger automobile in this State, unless it is equipped with a passive anti-theft device. A person violating the provisions of this section sha ll be liable to a fine of not less than $200 or more than

$500 per offense.

b. No Passenger automobile manufactured for the 1992 model year or for any model year thereafter (1) which is at or over the estimated median manufacturer's suggested retail price as set by Division of Consumer Affairs pursuant to section 2 of this act ( 1) shall be registered, as required under the provisions of R.S.39:3-4, unless it is equipped with a passive anti-theft device. For the purpose of this section, a passive anti-theft device means any device or system incorporated in the manufacture of a passenger automobile, or installed in a passenger automobile after original manufacture, which automatically activates upon turning off the motor of a vehicle and causes an alarm or ignition cut-off to engage. The device or system required shall be of a type approved by the Director of The Division of Motor Vehicles. (1) 2. A taxpayer who installs a passive anti-theft device as defined in section 1 of P.L.... c.... (C.............)(now pending before the Legislation as this bill) on a passenger automo bile manufactured prior to the 1992 model year which is not equipped

----------

(EXPLANATION--Matter enclosed in bold-faced brackets (thus) in the above bill is not enacted and is intended to be omitted in the law. Matter underlined thus is new matter. Matter enclosed in superscript numerals has been adopted as follows: (1) Senate SLP committee amendments adopted May 22, 1989.)

before the Legislature as this bill) on a passenger automobile manufactured prior to the 1992 model year which is not equipped with such a device shall be entitled to a credit equal to the cost of the device or $100, whichever is less, against the tax ot herwise due on his New Jersey gross income for that tax year. The Director of the Division of Taxation shall promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C.52:14B-1 et seq.), to effectuate this ta x credit.

A taxpayer who installs a signal-activated vehicle recovery system on a passenger automobile which is not equipped with such a device shall be entitled to a credit equal to the cost of the device or $500, whichever is less, against the tax otherwise due on his New Jersey gross income for that tax year. As used in this section, a signal-activated vehicle recovery system means a small electronic unit installed in a vehicle that may be activated when the vehicle is reported stolen. When activated, the sy stem emits a signal which may be monitored by law enforcement officials to locate the vehicle. The Director of the Division of Taxation shall promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L. 1968, c.410 (C.52:14B-1 et seq.), to effectuate this tax credit. (1)

(1) (2.) 3. (1) The Director of the Division of Motor Vehicles shall promulgate, pursuant to the provisions of the "Administrative Procedure Act," P.L. 1968, c.410 (C.52:14B-1 et seq.) rules and regulations to establish the estimated median manufacturer' s suggested retail price

for all passenger automobiles with standard equipment sold in this State. The director shall promulgate regulations for the median manufacturer's suggested retail price for passenger automobiles for model year 1992 within six months after the effective date of this act. Adjustments to this median price shall be made as necessary and shall be made at least 18 months before the manufacture of passenger automobiles for any model year. (1)

(1) (3.) 4. (1) This act shall take effect immediately.

ID: 12423-2.pja

Betsy Dittemore
Legislative Liaison
Iowa Department of Public Safety
Commissioner's Office
Wallace State Office Building
Des Moines, Iowa 50319-0040

Dear Ms. Dittemore:

This responds to your letter asking whether the proposed Iowa legislation to allow light transmittance levels of 35 percent or lower on vehicle windows complies with Federal regulations (i.e., Federal Motor Vehicle Safety Standard No. 205, Glazing Materials). You also asked "does the federal government currently pursue action in states that have adopted standards that are not in compliance with federal regulations?"

As explained below, while the Iowa legislation generally would not conflict with Federal laws, the provision allowing drivers with "light-sensitive disorder permits" to have darkened windows may conflict with Federal law. Regarding your question on NHTSA's enforcement of its light transmittance requirements, NHTSA currently has no open cases on the subject. However, if it became an enforcement priority, NHTSA could enforce the 70 percent transmittance requirement in Standard No. 205 without regard to lower thresholds set by State laws.

NHTSA has the authority under 49 USC 30111 to issue Federal Motor Vehicle Safety Standards applicable to all new motor vehicles at time of first sale to the consumer. Standard No. 205 specifies performance requirements for glazing, and includes a requirement that all windows "requisite for driving visibility" (including all windows in passenger cars) have a light transmittance of at least 70 percent. Although the standard itself does not apply after the first sale of the vehicle, 49 USC 30122(b) prohibits a vehicle manufacturer, distributor, dealer, or repair business from "mak[ing] inoperative any part of a device or element of design installed

on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard . . . ." The act of tinting regulated vehicle windows to transmittance levels darker than 70 percent is a violation of this section.

Note however, that NHTSA's regulations do not apply to certain parties or actions. Vehicle owners are not restricted by Federal law in the modifications that they make to their vehicles, and could tint their windows as dark as they like without violating Federal law (although NHTSA does not encourage tinting darker than Standard No. 205 allows). Federal law also does not regulate the operation or use of vehicles, which is under the jurisdiction of the States.

Under certain circumstances, State laws would be preempted by Federal law. 49 USC 30103(b)(1) states "[w]hen a motor vehicle safety standard is in effect . . . a State . . . may prescribe . . . a standard applicable to the same aspect of performance . . . only if the standard is identical to the [federal standard]." The State laws would be preempted by the Federal law to the extent that they regulate the same aspect of performance in a different way, or permit something that is prohibited by the Federal regulations. We explained in a July 30, 1990 response to a similar inquiry from you (enclosed) that, as long as the State legislation restricts itself to regulating the operation or use (as opposed to sale or modification) of vehicles, it would not be preempted by Federal law. By merely regulating the degree of tint in vehicles registered in the State or used on its roads, some States specify a lower transmittance level than the Federally required 70 percent.

I would summarize the legislation you sent us as prohibiting a person from operating on Iowa highways a motor vehicle requiring Iowa registration if: (1) any sunscreening device or transparent material (hereafter referred to as tinting material) is applied to the vehicle's windshield below five inches from the top of the windshield or the AS-1 line, (2) tinting material applied to any other window reduces the light transmittance of the glazing below 30 percent (accounting for the 5 percent tolerance), or is reflective, or is red, amber, or yellow in color, (3) tinting material is applied to any window to the rear of the driver and the vehicle is not equipped with left and right side rearview mirrors. The above restrictions do not apply to windows behind the driver of a "motor truck," bus, recreational vehicle, multipurpose vehicle, or any motor vehicle with a light-sensitive disorder permit affixed.

All of these provisions mentioned in the summary above only regulate the operation of vehicles, or the applicability of Iowa's law, so there is no explicit conflict with the Federal law. However, as we stated in our previous letter, we do not understand why the State of Iowa would conclude that the safety need that justifies requiring not less than 70 percent light transmittance in new vehicles is satisfied by allowing light transmittance levels as low as 30 percent in vehicles to be operated in the State.

There is one aspect of the proposed legislation that we believe could cause confusion and lead tint film installers to violate Federal law. The legislation states "[a] person suffering from a light sensitive disorder may operate a motor vehicle equipped with windows with less than thirty-five percent light transmittance on the side and rear windows, if that person has a light-sensitive disorder permit [issued by the State]." (Emphasis added). Taken literally, this language is not preempted because it restricts itself to the issue of operation, without addressing how the windows got so dark in the first place. However, most State laws prohibit certain behaviors, while the word "may" in your proposed legislation is permissive.

People reading the permissive language in this proposal may assume that there are no restrictions on installing very dark tinting material so long as a State permit has been issued. However, if a vehicle manufacturer, distributor, dealer, or repair business installs such dark tinting material, they would violate the Federal prohibition against "mak[ing] inoperative" a piece of motor vehicle equipment. We suggest that, before the proposal becomes law, you add some language expressly stating the permissive language does not permit installation of tinting material by these parties.

I hope this information is helpful. If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

ref:205

d:11/18/96

ID: 86-1.6

TYPE: INTERPRETATION-NHTSA

DATE: 01/06/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: D. Moens -- Sales Engineer, Van Hool N.V. (Belgium)

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. D. Moens Sales Engineer Van Hool N.V. Bernard Van Hoolstraat 58 B-2578 Lier Koningshooikt, Belgium

This responds to your October 10, 1985 letter to this agency requesting an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Window Retention and Release. You asked whether FMVSS No. 217 allows the use of sliding roof emergency exits. The answer to your question depends on the location of the release mechanism and the direction in which the mechanism operates relative to the surface of the closed exit. As explained below, if the release mechanism falls in the area of high force application, i.e., the area of the bus in which high operating forces may be used, then the answer to your question is no.

According to your letter, you provide two roof hatches on your buses, in the front and rear of the vehicles, although the front roof hatch is not needed to meet the unobstructed openings requirement of Standard No. 217. The roof hatches would slide open rather than push out, and would be opened by a handle which is located in the region of high force application as shown in Figure 3B of the standard.

Standard No. 217 requires buses to be equipped with emergency exits and specifies requirements that all emergency exits must meet. Paragraph S5.2.1 of Standard No. 217 provides that a roof exit may be installed on buses with gross vehicle weight ratings of more than 10,000 pounds when the bus configuration precludes installation of an accessible rear exit. The roof exit must meet the requirements of paragraphs S5.3 through S5.5. Under S5.3.2, the direction of required force application in the high force access region is straight and perpendicular to the exit surface. Since your exit is designed so that the force is applied parallel to the exit surface, it does not comply with S5.3.2.

Of course, your roof emergency exit must meet all applicable requirements in FMVSS No. 217. You should note that under S5.3.1, a roof exit must provide for a release mechanism, located within the regions depicted in Figure 3B of the standard. The release mechanism must be operated by one or two force applications which comply with S5.3.2. Further, S5.5 sets certain identification requirements for roof emergency exits.

You stated that the roof exit installed in the forward half of the bus does not need to be counted to satisfy the unobstructed openings requirement of Standard No. 217. Exits that are not labeled or intended as emergency exits need not meet the emergency exit requirements of FMVSS No. 217.

You asked what consequences would follow if we determine that your sliding roof exit does not comply with FMVSS No. 217. That standard was issued under the National Traffic and Motor Vehicle Safety Act. The Act requires manufacturers to comply with all applicable safety standards. It also requires them to notify purchasers of their motor vehicles of safety-related defects and failures to comply with the safety standards, and to remedy such defects and noncompliances without charge. Violations of the Act's requirements are punishable by civil fines of up to $1,000 per violation, with a maximum $800,000 for a related series of violations. Under the regulations set forth in Part 556 of Title 49 of the Code of Federal Regulations (copy enclosed), manufacturers may petition NHTSA for an exemption from the Act's notice and remedy requirements if they believe that the defect or noncompliance is inconsequential as it relates to motor vehicle safety. However, if the agency denies such a petition, all duties relating to notice and remedy of the defect or noncompliance contained in the Vehicle Safety Act are continued in force against the manufacturer.

Mr. Sebastian Messina of the New Jersey Department of Transportation has contacted us concerning the sliding emergency exits on your buses. We are sending him a copy of this letter for his information.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

NHTSA Chief Council Mr. Jeffrey R. Miller 400 7th Street SW Washington DC 20590 USA

VIA AIR MAIL

AFDELING: Eng. Dept. BIN TELEF: 419 ONZE REF: DM/cb/13.979 B-2578 LIER - KONINGSHOOIKT: 10.10.85

Dear Sirs,

Re.: Emergency roof hatch Ref: Standard no. 217, Bus window retention and release

Van Hool are Belgian bus and trailer manufacturers, with a production capacity of 1500 buses and 4000 trailers and semi-trailers a year. For your information you will find enclosed a general presentation leaflet.

After the information we got by phone from the New Jersey D.O.T. with the statement that they will not accept our sliding type emergency roof hatches anymore, we would like to make clear to you the functioning of our type of roof hatches, Please find enclosed some copies explaining the system. We do not intend to tell what is right or wrong or express our displeasure, nor do we have doubts about the objectivity of the New Jersey D.O.T. However an investigation from your side of our system and a judgement would be appreciated as we have to deal with other States which rely on the Federal decisions and Standards.

Two completely finished buses and one almost finished bus are ready to be shipped to the USA; they are still equipped with the sliding type emergency roof hatches. So if your judgement should be negative we would like to get a derogation for those 3 buses because in the meantime they will already be shipped to the U.S.A.

Please also note that, in case of a negative judgement, we have yet studied other types of American made roof hatches, for future deliveries.

We thank you for an early reply and remain,

Yours sincerely,

N.V. VAN HOOL

D. MOENS Sales Engineer Enclosures - explanation of functioning

Explanation of functioning

1. The 2 roof hatches are situated in the centre of the roof, one in the first half of the bus and one in the rear half, in the access region for high forces (magnitude of not more than 60 pounds).

In fact we only need the rear one to replace the rear exit.

But as we use them also for ventilation we are mounting 2.

2. The roof hatch can be opened manual by s single occupant and one motion, sliding backwards, parallel to the exit surface.

3. Magnitude: 56 pounds.

4. The free unobstructed opening is: 31 inches x 21 inches.

ID: 7135

Mr. Michael J. Sens
Researcher
S.E.A., Inc.
7349 Worthington-Galena Road
Columbus, OH 43085

Dear Mr. Sens:

This responds to your letter to me dated March 26, 1992, in which you sought our interpretation of whether the requirements of Federal Motor Vehicle Safety Standards 206, Door Locks and Door Retention Components; 214, Side Door Strength; and 216, Roof Crush Resistance--Passenger Cars,, applied to a 1985 American Motors Corporation (AMC) Jeep CJ- 7. You stated in your letter that AMC classified the vehicle as a "sport utility vehicle" and that it came with a soft top or an optional fiberglass top, both with removable side doors.

By way of background information, the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), 15 U.S.C., 1381, et seq., as amended, authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards for new motor vehicles and items of motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the United States must comply with all applicable safety standards. In accordance with 49 CFR 567, Certification, manufacturers of motor vehicles must certify that their products comply with all such standards.

Each safety standard applies to specified "types" of motor vehicles and/or motor vehicle equipment. Motor vehicles are classified into the following types: passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles. A definition for each motor vehicle type is set forth at 49 CFR 571.3. Thus, a 1985 AMC Jeep CJ-7 was required to comply with all safety standards that applied to its vehicle type at the time of its manufacture. In order to determine what safety standards applied to the vehicle, it is first necessary to establish its classification under Part 571.3.

The Safety Act places the responsibility for classifying a particular vehicle in the first instance on the vehicle's manufacturer. For this reason, NHTSA does not approve or endorse any vehicle classification before the manufacturer itself has classified a particular vehicle. NHTSA may reexamine the manufacturer's classification during the course of any enforcement actions.

While AMC may have marketed the 1985 AMC Jeep CJ-7 as a "sport-utility vehicle," it classified it as a multipurpose passenger vehicle for purposes of the Federal motor vehicle safety standards. The term "multipurpose passenger vehicle" is defined in Part 571.3 as "a motor vehicle with motive power, except a trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation." It is our opinion that AMC's classification was appropriate, given that the 1985 Jeep CJ-7 is a 4-wheel drive vehicle with an approach angle of 33o, departure angle of 25o, breakdown angle of 18o, axle clearance of 7.8", and minimum running clearance of 8.1", and thus clearly has special features for occasional off-road operation.

With specific reference to the three standards you inquired about concerning possible applicability to a 1985 AMC Jeep CJ-7, Standards 214 and 216 applied only to passenger cars at the time the CJ-7 was manufactured. See S2 of Standard 214 and and S3 of Standard 216. Since the 1985 AMC Jeep CJ-7 was classified as a multipurpose passenger vehicle and not a passenger car, those two standards, by their terms, did not apply to it.

Standard 206, on the other hand, did apply to multipurpose passenger vehicles as well as passenger cars. However, S4 thereof provided in pertinent part: ". . . [C]omponents on folding doors, roll-up doors, doors that are designed to be easily attached to or removed from motor vehicles manufactured for operation without doors, . . . need not conform to this standard." You indicated that the Jeep CJ-7 came with removable side doors, and we understand that the vehicle was manufactured for operation without doors. Accordingly, the AMC Jeep CJ-7 came within the above-quoted exception to Standard 206 and was not subject to its requirements.

I hope the above information will be helpful to you. If you have any further questions or need additional information regarding this matter, please feel free to contact Walter Myers of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:571#567#206 d:4/17/92

ID: nht92-7.37

DATE: April 17, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael J. Sens -- Researcher, S.E.A., Inc.

TITLE: None

ATTACHMT: Attached to letter dated 3/26/92 from Michael J. Sens to Paul J. Rice (OCC 7135)

TEXT:

This responds to your letter to me dated March 26, 1992, in which you sought our interpretation of whether the requirements of Federal Motor Vehicle Safety Standards 206, Door Locks and Door Retention Components; 214, Side Door Strength; and 216, Roof Crush Resistance -- Passenger Cars, applied to a 1985 American Motors Corporation (AMC) Jeep CJ-7. You stated in your letter that AMC classified the vehicle as a "sport utility vehicle" and that it came with a soft top or an optional fiberglass top, both with removable side doors.

By way of background information, the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), 15 U.S.C., S1381, et seq., as amended, authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards for new motor vehicles and items of motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the United States must comply with all applicable safety standards. In accordance with 49 CFR 567, Certification, manufacturers of motor vehicles must certify that their products comply with all such standards.

Each safety standard applies to specified "types" of motor vehicles and/or motor vehicle equipment. Motor vehicles are classified into the following types: passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles. A definition for each motor vehicle type is set forth at 49 CFR 571.3. Thus, a 1985 AMC Jeep CJ-7 was required to comply with all safety standards that applied to its vehicle type at the time of its manufacture. In order to determine what safety standards applied to the vehicle, it is first necessary to establish its classification under Part 571.3.

The Safety Act places the responsibility for classifying a particular vehicle in the first instance on the vehicle's manufacturer. For this reason, NHTSA does not approve or endorse any vehicle classification before the manufacturer itself has classified a particular vehicle. NHTSA may reexamine the manufacturer's classification during the course of any enforcement actions.

While AMC may have marketed the 1985 AMC Jeep CJ-7 as a "sport-utility vehicle," it classified it as a multipurpose passenger vehicle for purposes of the Federal motor vehicle safety standards. The term "multipurpose passenger vehicle" is defined in Part 571.3 as "a motor vehicle with motive power, except a trailer designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation." It is our opinion that AMC's classification was appropriate, given that the 1985 Jeep CJ-7 is a 4-wheel drive vehicle with an approach angle of

33 degrees, departure angle of 25 degrees, breakdown angle of 18 degrees, axle clearance of 7.8", and minimum running clearance of 8.1", and thus clearly has special features for occasional off-road operation.

With specific reference to the three standards you inquired about concerning possible applicability to a 1985 AMC Jeep CJ-7, Standards 214 and 216 applied only to passenger cars at the time the CJ-7 was manufactured. See S2 of Standard 214 and and S3 of Standard 216. Since the 1985 AMC Jeep CJ-7 was classified as a multipurpose passenger vehicle and not a passenger car, those two standards, by their terms, did not apply to it.

Standard 206, on the other hand, did apply to multipurpose passenger vehicles as well as passenger cars. However, S4 thereof provided in pertinent part: ". . . (C)omponents on folding doors, roll-up doors, doors that are designed to be easily attached to or removed from motor vehicles manufactured for operation without doors, . . . need not conform to this standard." You indicated that the Jeep CJ-7 came with removable side doors, and we understand that the vehicle was manufactured for operation without doors. Accordingly, the AMC Jeep CJ-7 came within the above-quoted exception to Standard 206 and was not subject to its requirements.

I hope the above information will be helpful to you. If you have any further questions or need additional information regarding this matter please feel free to contact Walter Myers of my staff at this address or by telephone at (202) 366-2992.

ID: 24345.ztv

Mr. Ronald E. Kish
Plastics by Design, Inc.
P.O. Box 220
Marcellus, MI 49067

Dear Mr. Kish:

This is in reply to your recent undated letters to Frank Seales, Jr., and John Womack, with reference to a license plate lamp you intend to market for use on a cargo utility trailer. You enclosed a test report and stated that the test results are "within the SAE Standard J587 and FMVS 108." You asked "may we market this model as compliant with D.O.T. ???"

Under the primary motor vehicle safety statute, 49 U.S.C. Chapter 301, a manufacturer of motor vehicle equipment must certify that its product complies with all applicable Federal motor vehicle safety standards (FMVSS) if there is a FMVSS that applies to its product (49 U.S.C. 30115). Paragraph S5.8, the replacement equipment provisions of FMVSS No. 108, applies to the license plate lamp you intend to manufacture. FMVSS No. 108 allows you, as the manufacturer, to certify compliance by labeling each lamp with a DOT symbol (S5.8.10). Use of this symbol identifies the lamp as compliant with DOT standards applicable to license plate lamps, but if you wish to use further language indicating compliance, we prefer that you say the lamp "complies with FMVSS No. 108" rather than "compliant with D.O.T."

We express no opinion as to whether your lamp design complies with FMVSS No. 108. The test report you sent us relates to the photometric performance of a center highmounted stop lamp with a clear red lens, and you cannot use this as a basis for certifying conformance of a license plate lamp.

Assuming that you have, or will have, a test report indicating that your license plate lamp meets SAE J587, the fact that a prototype lamp meets the tests specified in applicable SAE standards does not necessarily indicate that all production lamps will comply with SAE specifications incorporated by reference in FMVSS No. 108. A manufacturer must exercise "reasonable care" in ensuring that each of its products complies with all applicable FMVSS and in certifying such compliance (49 U.S.C. 30112(b)(2)(A), 30115) in order not to violate the provisions of Chapter 301. Occasional surveillance testing of production items is one means of ensuring continuing compliance of products.

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:108
d.6/14/02

ID: 23064.rbm

Mr. Kenneth Conaway
Adaptive Mobility Inc.
7050 Guion Road
Indianapolis, IN 46268





Dear Mr. Conaway:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) final rule on vehicle modifications for individuals with disabilities. You ask for clarification of the statutory prohibition against making required safety equipment inoperative. You are particularly interested in whether a modifier may alter a vehicle that has already been purchased by the individual seeking to have the vehicle modified.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (recodified at 49 U.S.C. 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs. Alterers of motor vehicles are companies that modify a completed vehicle prior to first retail sale. Alterers must determine whether those modifications could negate the vehicle manufacturer's certification of compliance and, if so, must certify the vehicle as to those safety standards that were affected by the modification.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified in 49 CFR Part 595. Only portions of some FMVSSs are covered by the exemption. Additionally, the exception only applies to modifications made after the first retail sale of the vehicle.

How and if an FMVSS applies to a particular business is dependent upon the product or services that the business provides. Producers of equipment that is used in a system designed to comply with a particular FMVSS are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer using the product would be. Final stage manufacturers or alterers of vehicles that modify a vehicle system that the previous-stage manufacturer had certified as compliant must certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS. Thus, each vehicle must remain in compliance with all applicable safety standards until the time of its first retail sale. Additionally, vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

As noted above, the prohibition against making required safety equipment inoperative applies to "manufacturers, distributors, dealers, and motor vehicle repair businesses." A motor vehicle repair business is defined in 49 U.S.C. 30122(a) as "a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment." This term includes businesses that receive compensation for servicing vehicles without malfunctioning or broken parts or systems by adding or removing features or components to or from those vehicles or otherwise customizing those vehicles. (49 CFR 595.4) Thus, unless a modification is covered by the Part 595 exemption, any type of modification to a vehicle that has been sold to a retail customer that negates compliance with a FMVSS is prohibited, even if the modifications are made pursuant to the vehicle owner's instructions.

We note that an individual who modifies his or her own personal vehicle is not subject to the Federal prohibition against making required safety equipment inoperative. However, we recommend that owners not take actions that adversely affect their safety. Moreover, any individual who wishes to modify his or her vehicle should first verify that there is no prohibition against such modifications under the laws of the individual's state.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202)366-2992 should you have any additional questions about this matter.

Sincerely,

John Womack
Acting Chief Counsel
ref:595
d.3/1/02





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¹ As a practical matter, component suppliers often assume some responsibility to the vehicle manufacturer for the compliance of their products to applicable FMVSSs. This is done through a contractual relationship between the supplier and the vehicle manufacturer that certifies compliance.

ID: nht79-4.12

DATE: 06/21/79

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Macdonald Equipment Company

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your January 2, 1979, letter asking whether it is permissible to mount a snow plow on a vehicle when the weight of the snow plow will cause the vehicle to exceed its gross axle weight rating (GAWR). The answer to your question is no.

The GAWR of a vehicle is determined and established by a vehicle's manufacturer and represents a manufacturer's assessment of the maximum weight that each axle can safely sustain. When this weight rating is exceeded by the addition of equipment to a vehicle, the safety of a vehicle is jeopardized. Over a period of time, the excessive weight borne by the axle could result in unusual wear and eventual failure of the axle.

The National Highway Traffic Safety Administration requires manufacturers to label their vehicles with GAWR's to avoid the overload problem that you mention in your letter. The NHTSA has not granted exceptions from this requirement for snow plows. If you mount a snow plow on a new vehicle prior to first purchase, you must be sure that the vehicle continues to comply with all Federal safety standards and regulations. If the weight of the plow exceeds the GAWR of the vehicle, the vehicle would no longer comply with the certification regulation and would not comply with Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. Further, the compliance of other safety standards could be impacted by the addition of that weight.

In the case of used vehicles on which you mount a snow plow, a manufacturer, repair business, distributor, or dealer may not knowingly render inoperative the compliance of a vehicle with the safety standards. The attachment of a snow plow that exceeds the gross axle weight rating would render inoperative the compliance of the vehicle with Standard No. 120. Accordingly, whether a vehicle is new or used, the additional weight of a snow plow that would exceed the GAWR of a vehicle would not be permissible.

The NHTSA understands the budgetary constraints of municipalities. However, financial considerations must be balanced against the potential loss of life that can occur when vehicles are routinely overloaded. Accordingly, vehicles that have snow plows or other devices mounted on them should have sufficient GAWR's to carry their intended load.

Sincerely,

Macdonald Equipment Company

January 2, 1979

Office of the Chief Counsel National Highway Traffic Safety Administration

Gentlemen:

We have talked with your people here in Denver as well as with Mr. Elliot in Washington concerning the mounting of snow plows on trucks and they recommended that we contact your office for an opinion.

We are a disbributor for both a snow plow manufacturer and for a snow plow truck manufacturer and in the course of business we have noticed a trend develop, which we feel needs some clarification. In recent years cities, counties and states agencies responsible for snow removal seem to be purchasing trucks with smaller front axle capacity ratings. This is the result of increased prices on trucks in recent years and the need of these agencies to stay within their budgets.

The result of this trend is that the front axle capacities of these smaller trucks will not allow us to mount a hitch and snow plow on the truck without overloading the front axle or severly limiting the Dump Body capacity to avoid overloading the front axle, which limits the units role in spreading sand on the icy roads.

We would like to know if the weight of the snow plow and hitch must be included when determining the weight on the front axle or if ther is some type of exemption for snow plows. Since snow removal is a necessity in much of our country during the winters and the snow plows are generally on the trucks only in the event of storm it would seem that if there is not an exemption for the snow plows at present, it is an area that some type arrangement needs to be worked out. If the trend to the smaller type trucks with front axles rated at 12,000 pound or less capacity continues and we feel it will, it will be impossible to mount snow plows on most trucks used by these agencies.

Since we feel that we are getting into a situation where front axle load is becoming a question, we would very much appreciate any information or instructions you can give us in this matter. If we can supply you with any further material we would be most happy to do so. Thank you.

Macdonald Equipment Company A. M. Dahm, President

ID: 2351y

Mr. Satoshi Nishibori
Nissan Research & Development, Inc.
750 17th Street N.W., Suite 902
Washington, D.C. 20006

Dear Mr. Nishibori:

This responds to your January 16, 1990 letter to Mr. Robert Hellmuth, the Director of this agency's Office of Vehicle Safety Compliance, seeking an interpretation of Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars (49 CFR 571.120). Specifically, S5.1.2 of Standard No. 120 provides that when a passenger car tire is used on vehicles other than passenger cars, the tire's load rating shall be reduced by dividing it by 1.10 before calculating the sum of the load ratings of all of the original equipment tires on the vehicle. S5.3.2 through S5.3.5 establish requirements for certain information about the tires and rims to be labeled on the vehicle. S5.3.2 sets forth lettering size and format requirements for the labeling. S5.3.3 through S5.3.5 require the labeling to provide the following information: the "size designation of tires....appropriate (as specified in S5.1.2) for the GAWR" be given on the label; the size and type designation of rims "appropriate for those tires", and the "cold inflation pressure for those tires".

Your question was whether the cold inflation pressure set forth on the label in response to S5.3.5 of Standard No. 120 must reflect the 1.1 reduction factor set forth in S5.1.2 for passenger car tires. You suggested in your letter, and in your January 18, 1990 meeting with agency staff, that S5.3.5 does not require the 1.1 reduction factor to be taken into account when determining the cold inflation pressure to be specified. Instead, you suggested that Standard No. 120 requires the vehicle manufacturer to specify an inflation pressure that is adequate to support the tire's share of the gross axle weight rating (GAWR), without regard to the 1.1 reduction factor. I cannot agree with your suggested interpretation.

You asserted that S5.3.5 merely requires the label to include the "cold inflation pressure for those tires," without referring to S5.1.2 and its 1.1 reduction factor. You contrasted this requirement with that in S5.3.3, which expressly refers to S5.1.2 and the 1.1 reduction factor. You asserted that this difference in wording showed that the 1.1 reduction factor need not be considered when specifying the cold inflation pressure on the label in response to S5.3.5. This argument is not persuasive.

The load-carrying capability of a tire generally varies with the inflation pressure of that tire; i.e., a tire can carry a greater load at a higher inflation pressure and a lesser load at a lower inflation pressure. Hence, a reference to inflation pressure alone, without any corresponding load-carrying capability to which that inflation pressure applies would be meaningless. If S5.3.5 of Standard No. 120 were interpreted to require the manufacturer to specify some inflation pressure, without regard to any load that must be borne by the tire at that inflation pressure, the vehicle manufacturer could specify an extremely high or low inflation pressure. Such a specification would be useless or even dangerous for the consumer, and contrary to the purposes of the labeling requirements.

You implicitly recognize that such an interpretation is unacceptable when you argue on page 1 of your January 16, 1990 that S5.3.5 of Standard No. 120 must be interpreted to require the manufacturer to recommend an inflation pressure "that will permit the tires to safely carry Gross Axle Weight Rating loads and will provide good vehicle ride characteristics." In other words, Nissan agrees that the inflation pressure specified in response to S5.3.5 cannot be an extreme value such as 1 psi; instead, it must be determined with reference to some load that the tires will carry.

The question then becomes what loading must be considered to determine if the specified inflation pressure complies with S5.3.5. This question is answered by reading the labeling requirement of S5.3.5 in connection with the other labeling requirements in S5.3, instead of considering S5.3.5 in a vacuum. S5.3.2 sets forth the format and lettering size for the labels to be placed on all vehicles manufactured on or after December 1, 1984. The information that must appear on such labels is set forth in S5.3.3, S5.3.4, and S5.3.5 of Standard No. 120. S5.3.3 specifies that the label shall include information on "the size designation of tires (not necessarily those on the vehicle) appropriate (as specified in S5.1.2) for the GAWR." (Emphasis added). On any reading of this emphasized language, it is beyond dispute that the 1.1 reduction factor set forth in S5.1.2 must be considered when specifying the appropriate tire size designation pursuant to S5.3.3. Following this, S5.3.4 requires information on the size and type designation of rims "appropriate for those tires" to appear on the label. The reference to "those" tires in S5.3.4 indicates that the tires are the tires previously specified in S5.3.3. Similarly, when S5.3.5 requires the cold inflation pressure for those tires to appear on the information label, the language is referring back to the tires specified in S5.3.3. Since NHTSA agrees with your statements that S5.3.3 incorporates the 1.1 reduction factor of S5.1.2 to determine compliance with S5.3.3, and since S5.3.5 refers to the tires specified in S5.3.3, the 1.1 reduction factor set forth in S5.1.2 must be considered to determine ocmpliance with S5.3.5 of Standard No. 120.

Sincerely,

Stephen P. Wood Acting Chief Counsel /ref:120 d:3/l5/90