Interpretation ID: 22054.drn

Vincent P. Schulze, Chief
Commercial Bus Inspection and Investigation
State of New Jersey Department of Transportation
Division of Motor Vehicles
P.O. Box 160
Trenton, NJ 08666-0160

Dear Mr. Schulze:

This responds to your letter of May 18, 2000, to Mr. Chris Rotondo, of the Federal Motor Carrier Safety Administration (FMCSA) concerning test procedures for bus windows. Because you had questions about Federal Motor Vehicle Safety Standard No. 217, Bus emergency exits and window retention and release, which is administered by the National Highway Traffic Safety Administration (NHTSA), I have been asked to respond.

In your letter, you state that New Jersey State bus investigators are issuing summonses for safety violations during roadside bus safety inspections. The summonses are issued under the guidelines of a New Jersey statute, the "Bus Safety Compliance Act." One serious violation for which bus operators may be cited is "inoperable emergency exit windows." In your letter, you write:

However, it appears that the lawyers may have found a loophole to have most of these summonses thrown out of court (not guilty) due to a technicality in the Federal regulations that govern the operation of emergency exits. The Federal Motor Vehicle Safety Standard (FMVSS) 217, under Test Conditions, part S6.2 states: "The inside of the vehicle and the outside environment are kept at any temperature from 70 degrees to 85 degrees immediately preceding the tests, and during the tests."

Apparently, a bus company attorney has successfully argued in a New Jersey state court that the New Jersey Department of Transportation did not meet the test conditions specified in Standard No. 217 because it inspected the bus when the outside temperature was below 70 degrees. You are writing for clarification of S6 "Test conditions" in Standard No. 217.

Some background information about NHTSA's statutory authority may be helpful. NHTSA is authorized to issue and enforce FMVSSs applicable to new motor vehicles. Our statute at 49 U.S.C. 30112(a) requires any person selling a new motor vehicle to sell a vehicle that meets all applicable standards. Each manufacturer of a new bus must assure that the bus meets all applicable FMVSSs, including Standard No. 217. Section 30112 does not apply to the sale, offer for sale, or introduction or delivery for introduction in interstate commerce of a motor vehicle "after the first purchase of the vehicle ... in good faith other than for resale." 49 U.S.C. 30112(b). Nor does it govern operational requirements for vehicles, which are generally established by the States and, for certain trucks, buses, and commercial vehicles, by the FMCSA.

Pursuant to 49 U.S.C. 30111(a), all FMVSSs must "be stated in objective terms." For this reason, NHTSA includes test procedures in each of its FMVSSs so that manufacturers will be aware of the manner in which NHTSA will conduct its compliance tests. The provision of S6.2 quoted in your letter simply specifies the range of temperatures at which our compliance tests will be conducted, to ensure that the tests are conducted as uniformly and objectively as possible. The specification of test temperatures does not mean that emergency exits are only required to open when the ambient temperature is between 70 and 85 degrees.

We agree with you that the emergency exits should be operable under all the driving conditions to which a bus could be subjected. However, as stated above, this is a matter governed by State law, not by the NHTSA standard. Unless New Jersey has specifically incorporated Standard No. 217 in its entirety, including its test procedures, into its operational requirements, we see no reason why law enforcement officials in New Jersey would only be able to issue citations for inoperable emergency exit windows if they showed that the windows did not function properly within the temperature range specified in the NHTSA standard.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:217
d.9/29/00