Letter to NHTSA:

DATE: March 27, 1991

FROM: James E. Rooks, Jr. -- Staff Attorney, Association of Trial Lawyers of America

TO: Paul J. Rice -- Chief Counsel, NHTSA

In conjunction with a research project I am completing, I am writing to request a clarification of a NHTSA position.

I am attaching a copy of a "Legal Advisory" column that appeared in Glass magazine for November 1986. There the general counsel of the National Glass Association (NGA) wrote that NHTSA's chief counsel had advised NGA "that federal windshield safety standards are not applicable to replacement windshield installations once vehicles have left their new car dealers' lots." He goes on to state that "no kind or amount of work on a damaged windshield renders it inoperable in violation of federal law (because) it is the original damage to the windshield... that renders the windshield inoperable -- not the company that repairs or replaces the already damaged windshield." Presumably the provision of federal law referred to is Section 1397(a)(2)A) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended.

I would appreciate knowing the following:

1. Whether NHTSA currently adheres to the above position with regard to Federal Motor Vehicle Safety Standards 212 and 216;

2. Whether NHTSA currently adheres to the above position with regard to the cited "render inoperable" provision of the National Traffic and Motor Vehicle Safety Act of 1966, as amended; and

3. Whether these positions have yet been tested in court; if so, what court, and what was the ruling?

Thank you for your attention to this inquiry. The deadline for my research is Friday, March 29, 1991. I would appreciate it a great deal if I could receive a response as soon as possible.

Any written response may be sent by facsimile to 202-342-5484.

Attachment

Article from "Legal Advisory" by Jerald Jacobs entitled Urethane Versus Butyl Windshield Replacement; Must Urethane be used for windshield replacement? What are the legal consequences? (Text omitted)

Letter From NHTSA:

DATE: May 29, 1991
FROM: Paul Jackson Rice -- Chief Counsel, NHTSA
TO: James E. Rooks, Jr. -- Staff Attorney, Association of Trial Lawyers of America

James E. Rooks, Jr., Esq.
Staff Attorney
Association of Trial Lawyers of America
1050 31st Street, N.W.
Washington, DC 20007-4499

This responds to your letter of March 27, 1991 concerning the applicability of various motor vehicle safety standards to the repair or replacement of damaged motor vehicle windshields. You enclosed a copy of the "Legal Advisory" column from the November 1986 issue of Glass magazine. That column stated that the National Highway Traffic Safety Administration ("NHTSA") advised the National Glass Association that "federal windshield safety standards are not applicable to replacement windshield installations once vehicles have left their new car dealers' lots." The column went on to state that "no kind or amount of work on a damaged windshield renders it inoperable in violation of federal law."

Your letter asked whether NHTSA currently adheres to the above position with regard to two Federal motor vehicle safety standards: Standard No. 212, Windshield Mounting, and Standard No. 216, Roof Crush Resistance. In a subsequent telephone conversation with John Rigby of this office, you asked the agency also to address the applicability of these principles to Standard No. 205, Glazing Materials.

I am pleased to have the opportunity to discuss these issues. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966 ("Act"), 15 U.S.C. 1397(a)(1)(A), provides that no person may manufacture for sale, sell, introduce into interstate commerce or import any motor vehicle or item of motor vehicle equipment that does not conform with all applicable Federal motor vehicle safety standards. However, pursuant to section 108(b)(1) of the Act, 15 U.S.C. 1397(b)(1), that prohibition does not apply "after the first purchase of (the vehicle or equipment) in good faith for purposes other than resale." On the other hand, section 108(a)(2) of the Act, 15 U.S.C. 1397(a)(2), 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 equipment in compliance with an applicable Federal motor vehicle safety standard . . . . "

With respect to Standards 212 and 216, which impose requirements applicable to completed motor vehicles, a manufacturer is not required to assure that the vehicles it manufactures remain in compliance after they have been sold for purposes other than resale. Moreover, a repair business that replaced a windshield that was previously damaged could not violate the "render inoperative" provision of the Act, regardless of what sealant was used. As NHTSA stated in a September 3, 1981 letter to the National Glass Dealers Association, even if it were somehow determined that the repaired vehicle did not satisfy the requirements of Standard No. 212 or No. 216, there would be no violation of the "render inoperative" provision of the Act. This is because the object or event that damaged the windshield in the first place had already rendered the windshield "inoperative" with respect to these standards. See also an October 5, 1983 letter to Anthony M. Peterson of Lansing Auto Glass Company. However, if for some reason a repair business were to replace a windshield that was not previously damaged, it could be held liable under section 108(a)(2) if it knew that its action caused the vehicle to no longer comply with either standard.

I would also like to deal with a relatively unlikely scenario. If a windshield needs to be repaired or replaced prior to the first sale to a consumer (e.g., due to breakage while en route from the manufacturer's factory to the dealer's showroom), the seller is required by section 108(a)(1)(A) to assure that the vehicle is brought into compliance with all applicable standards.

The situation is somewhat different with respect to Standard No. 205, which establishes, inter alia, strength and light transmittance performance requirements that must be met by glazing materials used in motor vehicles. Not only must the glazing in new vehicles meet this standard, replacement glass must also comply. Thus, any person who installs motor vehicle glazing that is not certified as being in compliance with Standard No. 205 would violate section 108(a)(1)(A), regardless of whether the vehicle is new. This would be because the installer would be selling or otherwise introducing into interstate commerce an item of motor vehicle equipment (i.e the glazing) that did not comply with an applicable safety standard. We have stated this interpretation in previous letters (most recently in our letter of March 14, 1991 to Loren Thompson).

Finally, you asked in your letter "whether these positions have yet been tested in court." We are not aware of any litigation in which any of the interpretation letters cited above have been considered.

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

Sincerely,

Paul Jackson Rice
Chief Counsel