ID: 16855.nhf

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc.
P.O. Box 540
Kinderhook, New York 12106

Dear Mr. Babirad:

This responds to your letter requesting information regarding modification of a 1997 minivan for a driver with muscular dystrophy. I regret the delay in responding. You request a waiver of Federal Motor Vehicle Safety Standard 208, Occupant Crash Protection, as the modifications proposed for this particular vehicle will require the removal of the original equipment manufacturers (OEM) steering wheel. In a telephone call with Nicole Fradette of my staff, you explained that your client has limited range of motion due to his disability. You explained that your client needs to replace the OEM steering wheel and air bag with a high-tech steering system that incorporates a reduced diameter steering wheel and reduced effort steering. The new steering wheel would be too small to be fitted with an air bag.

While the National Highway Traffic Safety Administration (NHTSA) cannot provide the specific relief you seek, since we are not authorized to grant waivers of safety standards under these circumstances, we can assure you that we will not institute enforcement proceedings against a commercial entity that modifies the steering wheel and column on a vehicle to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Standard No. 208, Occupant Crash Protection, requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the original steering wheel and air bag and replacing it with the high tech steering system would affect the vehicle's compliance with Standard No. 208. In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering wheel and air bag to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to disarm the air bag. The vehicle manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing a warning label stating that the air bag has been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visor above the deactivated air bag. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Warning Label
ref:VSA
d.5/22/98

ID: 1984-2.2

TYPE: INTERPRETATION-NHTSA

DATE: 05/21/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Hella North America Inc. -- Walter A. Genthe

TITLE: FMVSS INTERPRETATION

TEXT:

January 23, 1984

Dear Mr. Berndt:

Westfaelische Metall Industrie KG is currently designing headlamps for several automobile manufacturers.

These headlamps are designed to comply with Safety Standards 108 as amended by Docket 81-11 (latest issue: Notice 7).

Preliminary requests by our customers mandate an inclusion of parking/front position lamps and/or turn signal lamps and/or side marker lamps in the overall headlamp design.

A standard U.S. light bulb, meeting FMVSS 108 and/or applicable SAE recommended practices, will be used for these respective functions.

We intend to incorporate these functions into the headlamp compartment, retaining the bulb in question by means of a sealed attachment, similar to the one used in the C6 capsule installation.

No degradation of the system will result, since both functions are contained in one sealed compartment, covered by one common lens. No impairment of the effectiveness of the headlamp function is anticipated, nor will the headlamp impair the function of the parking/position/side marker lamp.

All photometric and environmental specifications for such lamps will be met and no component will be used which is outside the scope of FMVSS 108.

To clarify our intent, a sketch showing the principal design has been enclosed.

We are requesting a statement concerning the agency's opinion in this matter; specifically, as it concerns the legality of the proposed system, whole or in part, and solicit any suggestions as to necessary changes should the system not be in compliance with FMVSS 108, as amended by Docket 81-11.

This matter is of considerable urgency, because of design and manufacturing lead times.

A reply at yyor early convenience coud therefore be appreciated.

Very truly yours,

HELLA NORTH AMERICA INC.

Walter A. Genthe President

WAG/1h

Encls.

cc: Dr. Ernst, K 1 Mr. Westermann, K 1 Mr. Fikus, AF

Insert artwork here.

MAY 21, 1984

Mr. Walter A. Genthe President Hello North America, Inc. P.O. Box 499 Flora, Illinois 62839

Dear Mr. Genthe:

This is in reply to your letter of January 23, 1984, with respect to the inclusion of other lighting functions in a replaceable bulb headlamp compartment. These functions could include parking lamps, turn signal lamps, or side marker lamps. The bulb used would meet Standard No. 108/SAE specifications for the function chosen and they would be incorporated into the compartment bya a "sealed attachment." You represent that there will be no impairment of any function, and that the overall assembly will meet all photometric and environmental specifications. You have asked whether such a combination assembly is permissible under Standard No. 108.

The agency interprets Standard No. 108's specifications for replaceable bulb headlamps as allowing only one bulb in a lamp assembly to be used for headlighting purposes. It is silent as to whether additional bulbs may be used to provide other lighting functions. This means that such a bulb is permitted.

Obviously the inclusion of a second bulb can affect the characteristics of the assembly, whether through heat build up, the introduction of contaminants through the junction of the bulb and assembly, etc. These problems would appear to be minimized under the assumptions set forth in your letter. We believe therefore that, under these conditions, an auxiliary bulb could be included in the headlighting compartment, provided that the assembly meets all applicable requirements of Standard No. 108 for each function. Problems that may develop in service would be subject to the safety related defects authority of the National Traffic and Motor Vehicle Safety Act.

If Hella proceeds with a multi-bulb, design, we would like to request that it share with us the types of tests it will be developing which it deems necessary to insure adequate safety performance, so that our knowledge of state of the art lamp technology may be broadened.

Sincerely,

Frank Berndt Chief Counsel

C6/C6 **INSERT GRAPH**

**INSERT GRAPH**

ID: 1985-04.11

TYPE: INTERPRETATION-NHTSA

DATE: OCTOBER 29, 1985

FROM: AUTHOR UNAVAILABLE; Diane K. Steed; NHTSA

TO: The Honorable Malcolm Wallop

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for letter to Secretary Dole requesting clarification of the regulations pertaining to school bus identification. Your letter has been referred to our agency for reply, since we administer the school bus regulations.

You explained that several of your constituents are concerned that our regulations prohibit identifying nine-passenger vehicles that carry children to and from school as school buses. You suggested that school bus identification should be allowed as an added safety measure to alert other drivers to the nature of the vehicle.

I appreciate this opportunity to respond to your concerns. In brief, our regulations do not prohibit States from identifying smaller school vehicles as "school buses." States have the discretion to choose to identify nine-passenger school vehicles as school buses if the States wish to include such a requirement in their highway safety programs.

We have two sets of regulations, issued under separate Acts of Congress, that apply to school buses. The first of these, issued under the authority of the National Traffic and Motor Vehicle Safety Act of 1966, includes the motor vehicle safety standards applying to the manufacture and sale of new school buses. The second set of regulations, issued under the Highway Safety Act of 1966, provides guidelines to the States for their highway safety programs. One of these program standards provides recommended procedures for the identification of school vehicles.

Under the requirements of the Vehicle Safety Act, motor vehicle manufacturers must certify that their vehicles comply with all applicable motor vehicle safety standards. The applicability of our motor vehicle safety standards to a particular vehicle depends, in part, on the classification of that vehicle. Under Federal law, school vehicles carrying 10 or more passengers are "school buses" which must meet our school bus safety standards. The demarcation between school vehicles carrying 10 or more passengers and those carrying fewer than 10 is thus pertinent for the purpose of determining the classification of a vehicle, and the applicability of our school bus safety standards. Nine-passenger ven-type school vehicles are not considered "school buses" under our regulations, but are classified as "multipurpose passenger vehicles" (MPV's). While MPV's must be certified as meeting the safety standards for MPV's, they may also be voluntarily manufactured to meet the requirements for school buses as long as the vehicle continues to comply with our standards for MPV's.

I wish to emphasize that our safety standards for school buses are performance standards which apply only to the manufacture and sale of new school buses.

They do not govern the manner in which a school bus is identified or marked. Under the Highway Safety Act, we issued Highway Safety Program Standard No. 17, Pupil Transportation Safety (copy enclosed), which contains recommendations for the identification, operation, and maintenance of school vehicles. However, the implementation of Program Standard No. 17 is a matter for the States to decide, and State law would determine the operational requirements, such as those for school bus identification, that school vehicles must meet.

I hope this information is helpful. Please feel free to contact this agency if you have any further questions.

Sincerely,

Enclosure

ATTACH.

September 24, 1985

Elizabeth Dole -- Secretary, Department of Transportation

Dear Madame Secretary:

I recently received several letters from constituents who express concern about Department of Transportation regulations regarding minimum standards for school buses. These regulations prohibit the identification of 9 passenger vehicles from being classified as a "school bus." These vehicles, however, are used to transport children to and from school and should be identified as such as an adequate safety measure. The roads used by these vehicles are heavily traveled and if they are not appropriately marked as a vehicle transporting children, other vehicles may not drive respectfully.

I would appreciate it if you could look more closely at these regulations, keeping in mind the safety of school children in rural areas like Wyoming. Thank you for your attention to this matter. I look forward to your reply.

Sincerely,

Malcolm Wallop -- United States Senator

ID: 1985-04.39

TYPE: INTERPRETATION-NHTSA

DATE: 11/25/85

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: EPL Incorporated

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. James L. Loden President, EPL Incorporated 200 Campus Drive, RD Pemberton Farms Research Campus Mt. Holly, NJ 08060

Dear Mr. Loden:

Thank you for your July 16, 1985 letter inquiring about the existence of any Federal safety requirements applicable to your projected sale of heated windshield wiper blades. You also asked if Federal testing or research testing or research is being conducted on windshield wiper systems.

Under the National Traffic and Motor Vehicle Safety Act, this agency has issued Federal Motor Vehicle Safety Standard No. 103, Windshield Defrosting and Defogging Systems and No. 104, Windshield Wiping and Washing Systems, which are applicable to new motor vehicles. While these standards do not regulate the heating component of wipers, they do, among other things, require that a defrosting or wiping system clear a minimum percentage of a vehicle's windshield.

In addition, Standard No. 107, Reflecting Surfaces, also applies to new motor vehicles. This standard sets limits on the glare from certain metal components, including windshield wiper blades, in the driver's field of view. Its purpose is to reduce the likelihood that unacceptable glare from reflecting surfaces will hinder safe and normal operation of the vehicle. Copies of these three standards are enclosed.

If a new vehicle equipped with your blade did not comply with Standard No. 103, Standard No. 104, or Standard No. 107 due to some aspect of that blade, the sale of that car to the public would be a violation of the prohibition in section 108(a)(1)(A) of the Act against the sale of noncomplying vehicles.

As to used vehicles, you should be aware that section 108(a)(2)(A) of the Act prohibits manufacturers, distributors, dealers, and vehicle repair businesses from knowingly rendering inoperative equipment or elements of design installed on a vehicle under Federal motor vehicle safety standards. Care should be taken that the installation of your product would not have that effect. A rendering inoperative might occur if, for example, your blade were not large enough to enable the wiping system to clear a sufficient area of the windshield. We urge you therefore to ensure that the substitution of your blade for an original equipment blade provided by a vehicle manufacturer would enable the wiping or defrosting system to continue to perform as required by Standard No. 103 and No. 104, and would not produce unacceptable glare in the driver's field of view, as prohibited by Standard No. 107.

Copies of the windshield compliance test reports for Standard Nos 103 and 104 are available from the agency's Technical Reference Division. Copies of these reports can be purchased by contacting Mr. Robert A. Hornickle (202-426-2987).

I hope this information is helpful to you.

Sincerely,

Erika Z. Jones Chief Counsel Enclosures

E P L Incorporated 200 Campus Dr. RD 1 Pemberton Farms Research Campus Mt. Holly, NJ 08060

July 16, 1985

Mr. Steven Oesch Office of Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

Dear Mr. Oesch:

During a recent conversation, Edward Jetner, Staff Engineer for the Office of Vehicle Safety Standards, suggested I contact you for information on the Federal Motor Vehicle Safety Standards as they apply to a new product we intend to manufacture.

Our company, EPL Incorporated, is starting to manufacture a heated windshield wiper blade. We call it "Thermoblade", and it is designed for use on motor vehicles of all types. Thermoblade is an important safety item as it prevents snow and ice accumulation on the wiper blade and enables it to clean the windshield and provide good visibility for the driver even under the most severe weather conditions.

Is the product we intend to manufacture covered by certain Federal Motor Vehicle Safety standards? Has any Federal testing been done, or are any of our Government's testing laboratories involved in any research and development on windshield wiper systems?

Any information you can give us which will help us launch our new product will be very much appreciated. Should you need more information, please call me at 609-261-6000.

Sincerely,

James L. Loden President

ID: nht75-1.18

DATE: 12/31/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in further response to your letter of November 12, 1975, asking whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.

There are presently no requirements in the Federal motor vehicle safety standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the issuing of requirements for brake wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

November 12, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration

Re: Request for Statement of Scope of Braking Standards; Proposed Uniform State Brake Component Wear Warning Regulation

The Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) requests a statement by the National Highway Traffic Safety Administration of the preemptive effect of Federal Motor Vehicle Safety Standards 105, 105-75, and 121, in light of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966. MVMA believes that those standards preempt any state statute or regulation implementing the proposed uniform state regulation requiring brake wear warning devices recently adopted by the Vehicle Equipment Safety Commission. Briefly, that regulation would require that manufacturers of all highway use vehicles except motorcycles, trailers and semi-trailers provide a "visible, audible or tactile signal" when brake friction materials are worn to the discard point. (A copy of the VESC regulation is appended to this letter. The copy is of the draft prepared by the VESC for its annual meeting on July 30, 1975, which was adopted without substantial amendment on that date.)

Forty-two states and the District of Columbia are now members of the VESC. Under the terms of the Vehicle Equipment Safety Compact, "each party state obligates itself to give due consideration to any and all rules, regulations and codes issued by the Commission and hereby declares its policy and intent to be the promotion of uniformity in the laws of the several party states relating to equipment." A copy of the Vehicle Equipment Safety Compact is also appended.

MVMA includes in its membership manufacturers of more than 99% of the motor vehicles made in the United States. Our members are vitally affected by both Federal and state regulation of motor vehicles.

MVMA believes that state legislation or regulation incorporating this proposed brake wear warning device requirement is preempted by presently effective Federal motor vehicle safety standards which govern brake performance of affected vehicles; i.e., FMVSS 105 and 121. We urge the Administrator to publish a clear statement in the Federal Register, addressing this preemption issue and asserting that under the authority of Section 103(d) of the Safety Act, such legislation or regulation is preempted by these standards. MVMA believes that the issue raised here is as important as the question raised by the Japan Automobile Manufacturers Association on state enforcement policies, which occasioned the Administration to publish a strong preemptive statement in the Federal Register on June 2, 1971 (36 FR 10744).

Summary of Legal Issues

We believe that a brief review of the treatment given to the preemption question in the National Traffic and Motor Vehicle Safety Act is appropriate.

Section 103(d) of the Act (15 USCA Section 1392(d)) provides:

"(d) Whenever 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 to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The express statutory inclusion of such a preemption provision is relatively unusual. The statute does not broadly permit states to establish or enforce identical standards; it prohibits standards which are not identical to Federal standards. Congress made plain the necessity for Federal preemption and the broad reach the preemption provision was to have. For example, the Senate Report (S. Rep. No. 1301, 89th Cong., 2d Sess., 1966) stressed the paramount Federal Role (page 4):

"Out of the committee's hearings, there emerged a clear outline of the basic needs to be served by Federal legislation:

"1. The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.

"2. While the contribution of the several States to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." [Emphasis added]

The Senate Report also explained why preemption was needed to insure uniformity (page 12):

"The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. At the same time, the committee believes that the States should be free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to the particular aspect of the vehicle of item of vehicle equipment (sec. 104)." [Emphasis added.]

The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess., 1966) makes a similar statement. See page 11 where the House Report emphasizes the need for national solution of this "nationwide problem", and see also the emphasis on uniformity at page 17 -- "this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards."

In view of this legislative history of Section 103(d), it is clear that the comprehensive attention which the National Highway Traffic Safety Administration has given to brake systems and components in the formulation of Standards 105 and 121 preempts the regulation which the Vehicle Equipment Safety Commission now proposes for legislative or regulatory adoption by member states.

The currently effective Federal standard on hydraulic brake systems, FMVSS No. 105 (49 CFR S 571.105), states in its "Purpose and scope" section that it specifies requirements for ". . . brake systems intended to ensure adequate braking performance under normal and emergency conditions." The National Highway Traffic Safety Administration has taken the position that the purpose and scope provision of a Federal standard defines the aspect of performance covered -- see 35 Fed. Reg. 18000, November 24, 1970. The aspect of performance thus stated in FMVSS No. 105 necessarily embraces what the VESC now proposes as State law or regulation. Although FMVSS 105 does not deal in specific detail with all of the components of a hydraulic brake system, this system approach follows the Congressional expectation of how the Federal standards should operate. * Moreover, in addition to its system approach "to ensure adequate braking performance", FMVSS No. 105 specifically addresses failure of the system and requires a system effectiveness warning indicator light (@ 4.2.2). That requirement alone leaves no room for State adoption of a different warning requirement such as the VESC now proposes.

* For example, the Senate Report states at page 6:

"Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safe performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance (sec. 101(b)). Manufacturers and parts suppliers will thus be free to compete in developing and selecting devices and structures that can meet or surpass the performance standard.

"The Secretary would thus be concerned with the measurable performance of a braking system, but not its design details. Such standards will be analogous to a building code which specifies the minimum loadcarrying characteristics of the structural members of a building wall, but leaves the builder free to choose his own materials and design. Such safe performance standards are thus not intended or likely to stifle innovation in automotive design."

FMVSS No. 105-75 becomes effective on January 1, 1976. This standard has been under intense consideration by the Administration and by industry since 1968. In the course of that consideration the NHTSA considered and rejected matters which are pertinent here. For example, the Administration had proposed that brakes be installed so that the lining thickness of drum brake shoes and brake pads could be visually inspected without removing the drums or pads. Subsequently the Administration decided to abandon that proposal (37 Fed. Reg. 17972, September 2, 1972). The Administration has also stated that FMVSS No. 105 would provide consumers "with braking systems that have been optimized with respect to safety, performance, and cost," (38 Fed. Reg. 3047, February 1, 1973).

For any state now to enact an additional warning requirement would fly in the teeth of FMVSS No. 105-75. Such action would make a mockery of the uniformity which Congress said was necessary in adopting the preemption provision of the National Safety Act.

Also relevant is FMVSS No. 121, Air Brake Systems (49 CFR S 571.121). This standard "establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems." Its stated purpose "is to insure safe braking performance under normal and emergency conditions." Standard 121 clearly is a comprehensive set of requirements encompassing every aspect of performance of air brake systems. Section 5.1.4, Section 5.1.5, and Section 5.1.6 provide requirements for gauges and warning signals. It would be anomalous indeed if various states were now permitted to require additional warning devices to be added to the system.

General Motors Corporation, a member of MVMA, has informed MVMA of a determination of preemption that was made on May 2, 1975, by Mr. James Schultz, then Chief Counsel of the NHTSA, in a letter to Mr. Frazer F. Hilder, General Counsel of General Motors Corporation. General Motors, in its letter of March 21, 1975, questioned the supplemental air brake performance requirements of the Massachusetts and New Jersey Departments of Public Utilities and indicated that those requirements were not identical to FMVSS No. 121 requirements.

Briefly, the Massachusetts statute and regulations required that all braking systems be constructed and designed to permit release by the operator from the normal operating position. Although FMVSS No. 121 requires the parking brake system to be operable after failure of both the service and emergency brake systems (@ 5.7.2.2), it does not expressly address the issue of how release of the parking brake should be made.

The New Jersey "autobus" regulation required an automatic emergency brake system as contrasted to the optional automatic or modulated system permitted in S5.7 of FMVSS No. 121. In addition, the New Jersey stopping distances for service and emergency brakes were not identical to the requirements of FMVSS No. 121.

In his May 2, 1975 answer to General Motors' request for a determination of preemption, Mr. Schultz stated in part as follows:

"Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive state brake requirement than that specified in Standard 121 is voided by @103(d) since the Federal Standard is intended to cover all aspects of brake performance. [Emphasis supplied.]"

In the course of extensive rulemaking for the development of Standards 105 and 121, the NHTSA has made its intention clear that those standards cover every aspect of braking performance on the vehicles to which they apply. In view of that expressed intention, a recent decision of the United States District Court for the Eastern District of California is germane. The case is Motorcycle Industry Council, Inc. et al v. Younger, et al No. CIV. S74-126, decided September 23, 1974. The Court reviewed a California statute requiring that motorcycles be wired so that headlamps would be lit whenever engines were running. The Court held that the statute related to the same "aspect of performance" as does FMVSS 108 and therefore was preempted.

In your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning the preemptive effect of FMVSS No. 108 upon that California statute you stated as follows:

"The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by the states. Such a position is impractical, where the Agency's intent is to have a comprehensive, uniform regulation in a given area . . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect; in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits." [Emphasis supplied.]

In light of the legislative history, and the administrative and judicial interpretations of Section 103(d) of the Safety Act, Standards 105 and 121 appear clearly to be comprehensive and exclusive requirements covering all aspects of hydraulic and air brake system performance. The omission from those standards of an express requirement for an audible or visual wear signalling device does not permit a State to impose such a requirement.

MVMA urges that the NHTSA promptly publish a statement that state adoption and enforcement of the VESC's brake wear warning regulation is preempted by Federal standards.

We appreciate your consideration of this request.

Thomas H. Hanna

CC: RICHARD B. DYSON; FRANK A. BERNDT

ID: 2790y

Mr. Danny Pugh
Engineering Manager
Utilimaster Corporation
65266 State Rd. 19
P.O. Box 585
Wakarusa, IN 46573

Dear Mr. Pugh:

This responds to your letter seeking an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR 571.208). More specifically, you asked about the requirements for safety belts at the various seating positions in vehicles with a gross vehicle weight rating under 10,000 pounds that you called "van conversions."

You first asked whether a "van conversion" would be classified as a passenger car, truck, or multipurpose passenger vehicle. Vehicles commonly called "vans" may be classed in four different vehicle categories (set forth at 49 CFR 571.3) for the purposes of our safety standards, depending on the configuration of the particular "van." Most cargo vans are classified as "trucks" under our safety standards, because those vehicles are "designed primarily for the transportation of property or special purpose equipment." Most passenger vans are classified as "multipurpose passenger vehicles," because they do not meet the definition of a "truck", but are "constructed on a truck chassis." Those vans that have eleven or more designated seating positions are classified as "buses," because they are "designed for carrying more than 10 persons. Finally, one minivan (the Nissan Axxess) was certified by its manufacturer as a "passenger car," because it was "designed for carrying 10 persons or less."

Additionally, the National Traffic and Motor Vehicle 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 in the course of any enforcement actions. If you are interested in the appropriate classification for a particular van conversion, we will offer our tentative opinion if you will provide us with detailed information on the van conversion in which you are interested.

You next asked on what date safety belts were required in "van conversions," what type of safety belts, and at what locations those belts were required. As explained above, we do not class vehicles as "van conversions" for the purposes of our safety standards. If the vans were classed as passenger cars, passenger cars manufactured on or after January 1, 1968 were required to have lap/shoulder safety belts at the front outboard seating positions and either lap/shoulder or lap-only safety belts at every other seating position in the car. Beginning December 11, 1989, passenger cars were required to have lap/shoulder safety belts at both front and rear outboard seating positions, with either lap/shoulder or lap-only safety belts at every other seating position. Since September l, l989, all passenger cars are required to be equipped with automatic crash protection for outboard front-seat occupants.

Multipurpose passenger vehicles and trucks with a gross vehicle weight rating of 10,000 pounds or less manufactured on or after July 1, 1971 were required to have lap/shoulder safety belts at the front outboard seating positions and either lap/shoulder or lap-only safety belts at every other seating position in the vehicle. Beginning September 1, 1991, vans classified as multipurpose passenger vehicles or trucks (other than motor homes) must have lap/shoulder belts at both front and rear outboard seating positions, with either lap or lap/shoulder belts at all other seating positions. Motor homes manufactured on or after September 1, 1991 will continue to be required to have lap/shoulder belts at front outboard seating positions and either lap/shoulder or lap-only safety belts at every other seating position. In addition, effective September l, l99l vans must meet dynamic crash test injury criteria for the front outboard seating positions.

If the vans were classed as buses, buses manufactured on or after July 1, 1971 were required to be equipped with either a lap/shoulder or a lap-only safety belt at the driver's seating position. Beginning September 1, 1991, buses with a gross vehicle weight rating of 10,000 pounds or less (except school buses) must be equipped with lap/shoulder belts at all front and rear outboard seating positions and either lap/shoulder or lap-only safety belts at every other seating position.

Also, the agency has proposed extending the automatic crash protection requirements mentioned above to these other vehicle classifications.

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref:208#571 d:12/13/90

ID: 2833o

William K. Baldwin, Sr.
14219 Decatur Drive
Magalia, CA 95954

Dear Mr. Baldwin:

This responds to your May 7, 1988 letter, concerning the "Baldwin Rear-View Mirror Safety System." You stated that this mirror system contains both a flat mirror of unit magnification and a convex mirror, and stated your belief that this mirror system "offers the latest in technology and safety." You requested that the National Highway Traffic Safety Administration (NHTSA) evaluate and approve your mirror system. We have no authority to approve any motor vehicles or motor vehicle equipment, as explained below.

The National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Safety Act") authorizes this agency to issue safety standards applicable to motor vehicles and items of motor vehicle equipment. The Safety Act also requires that these safety standards establish minimum levels of performance for vehicles or equipment. Once the necessary performance level has been established, vehicle or equipment manufacturers are free to choose any means they wish to achieve the required level of performance. In other words, the safety standards do not require the use of any particular manufacturer's product; the standards permit the use of any manufacturer's product that achieves the necessary performance level. Section 114 of the Safety Act (15 U.S.C. 1403) requires manufacturers to certify that each of its vehicles or items of motor vehicle equipment complies with all applicable safety standards. Because of this provision in the law, NHTSA cannot approve, endorse, or certify any motor vehicle or item of motor vehicle equipment.

NHTSA has exercised its authority to establish performance requirements for new vehicles in Standard No. 111, Rearview Mirrors (49 CFR 571.111; copy enclosed). As you will see, Standard No. 111 establishes performance and location requirements for the rearview mirrors installed in any new vehicle. This means that vehicle manufacturers must certify that each of their new vehicles complies with the applicable requirements of Standard No. 111. Standard No. 111 does not apply to rearview mirrors as items of equipment. The effect of this is to place the certification responsibility for original equipment rearview mirror systems entirely on the vehicle manufacturer. You as the manufacturer of the mirror are not required to certify that your mirrors comply with Standard No. 111 or any other standard.

With respect to your new mirror system, NHTSA has said in many previous interpretations that vehicle manufacturers may install mirror systems that combine flat and convex mirrors on their new vehicles, provided that the flat mirror portion by itself complies with the requirements of Standard No. 111 that are applicable to the vehicle type on which the mirror system is installed. Assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on new vehicles of that type.

Please note that the requirements of Standard No. 111 do not apply to mirrors installed as aftermarket equipment. The only limitation on such installations is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. The rearview mirror system in a vehicle is a device installed in compliance with Standard No. 111. If the installation of an aftermarket mirror system resulted in a vehicle no longer complying with Standard No. 111, a manufacturer, distributor, dealer, or repair business that removed a complying system and replaced it with the noncomplying system would have rendered inoperative a device (the mirror system) installed in the vehicle in compliance with Standard No. 111. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1,000 for each violation of the "render inoperative" provision.

Again assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on used vehicles of that type. If your mirror system does not comply with the requirements of Standard No. 111 for a vehicle type, it cannot be installed on used vehicles of that type by any manufacturer, distributor, dealer, or repair business.

Please note that the Safety Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual owners can install any mirror system they want on their own vehicles, regardless of whether that mirror system renders inoperative the vehicle's compliance with the requirements of Standard No. 111.

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

Sincerely,

Erika Z. Jones Chief Counsel Enclosures

ref:VSA#111 d:8/26/88

ID: 3328o

Mr. Frank J. Trecy
General Manager - Manufacturing
Miller Structures, Inc.
58120 C. R. 3 South
P. O. Box 1283
Elkhart, Indiana 46515

Dear Mr. Trecy:

I am writing in response to your request for an interpretation of whether Standard No. 115; Vehicle Identification Number - Basic Requirements (49 CFR 571.115) would apply to your company's portable commercial use structures. In your letter to me, you stated that Miller Structures, Inc. manufactures offices, storage buildings, classrooms, laboratories, branch banks, medical clinics, and other related commercial buildings on axles. This allows the structures to be transported to the desired location by attaching them to a truck tractor and moving them over the roads. You state that a "considerable" number of your units go to a location and are placed there permanently. You inform us that other buildings are placed on a location "for varying lengths of time" and are then relocated.

In a subsequent telephone conversation with Dorothy Nakama of my office, you stated that the structures are not self-propelling but must be towed by a semi-trailer or truck. Some of these structures have removable running gears. You also stated that the structures are constructed very much like mobile homes, and that the structures are intended to go on the public roads at least once, in order to get to their designated sites. You also stated that your structures are not regulated by the U. S. Department of Housing and Urban Development (HUD) because they are not homes.

Standard No. 115, and all of our safety standards, apply only to vehicles that are "motor vehicles," within the meaning of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.). The term "motor vehicle" is defined at section 102(3) of the Safety Act as follows:

"Motor vehicle" means any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails. We have interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Agricultural equipment, such as tractors, are not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles, such as mobile construction equipment, that use the public roads only to travel between job sites and which typically spend extended periods of time at a single job site are not considered motor vehicles. In such cases, the use on the public roads is merely incidental, not the primary purpose for which the vehicle was manufactured.

On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, utility vehicles like the Jeep are plainly motor vehicles, even though they are equipped with special features to permit off-road operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, NHTSA has interpreted the vehicle to be a "motor vehicle". Further, if a vehicle is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, NHTSA has found the vehicle to be a motor vehicle. This finding was made with respect to dune buggies and regardless of the manufacturer's stated intent regarding the terrain on which the vehicles were to be operated.

Based on the information you have provided, it appears that your portable structures are not "motor vehicles" within the meaning of the Safety Act and, therefore, are not subject to the requirements of Standard No. 115 or any other of our safety standards. This conclusion is based on our judgment that the vehicles seem analogous to mobile construction equipment - i.e., the on-road use of the vehicles appears to be incidental and not the primary purpose for which the vehicles are manufactured. Please note that this conclusion is based solely on the facts presented in your letter. We may reexamine this conclusion if additional information becomes available that would warrant a reexamination.

Additionally, you should note that this interpretation applies only to Federal requirements. The individual States may establish their own identification requirements for vehicles that are not subject to the Federal identification requirements, such as your mobile structures. Thus, the State of South Dakota could establish identification requirements applicable to your mobile structures sold in that State.

I hope the information provided above is useful. If you need further information on this subject, please contact Dorothy Nakama at (202) 366-2992 or write to me again.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:VSA#115 d:l2/30/88

ID: 6982

Mr. Brad Beach
389 Terrace Avenue
Suite 204
Virginia Beach, VA 23451

Dear Mr. Beach:

This responds to your letter to Mr. Taylor Vinson of my staff, inquiring about Federal safety standards that apply to objects designed to be attached to the rear and side windows of passenger automobiles. Although you did not specify what this object is, you described the object as being "not transparent," rectangular in shape, with dimensions of 12 inches in width by 18 inches in length. The following discussion explains how our safety standards apply to your product.

Some general background information on the Federal motor vehicle safety laws and regulations may be helpful. Our agency, the National Highway Traffic Safety Administration (NHTSA), is authorized under the National Traffic and Motor Vehicle Safety Act (Safety Act), to issue safety standards applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, 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. The agency periodically tests vehicles and equipment items for compliance with the standards, and also investigates alleged safety-related defects.

The agency has issued two Federal Motor Vehicle Safety Standards that might affect your product. These are Standards No. 205, Glazing Materials, and No. 111, Rearview Mirrors. Standard No. 205 specifies performance and location requirements for glazing used in vehicles. These requirements include specifications for minimum levels of light transmittance (70 percent in areas requisite for driving visibility, which includes all windows in passenger automobiles). Standard No. 111 sets performance requirements for rearview mirrors. The standard provides that each inside rearview mirror must provide a specified field of view to the rear of the vehicle. Manufacturers must certify that their new vehicles complies with the applicable requirements of Standards No. 205 and 111. If, before the vehicle were first purchased by a consumer, a subsequent manufacturer or dealer were to install a device that was not readily removable over the glazing and that impaired the field of view to the rear of the vehicle, that subsequent manufacturer or dealer would be required to certify that the vehicle continues to comply with the requirements of Standards No. 111 and 205 with this additional device installed.

After a vehicle is first sold to a consumer, modifications to a vehicle are affected by section 108(a)(2)(A) of the Safety Act. That section prohibits manufacturers, distributors, dealers, and repair shops from knowingly "rendering inoperative" any device or element of design installed on a vehicle in compliance with our standards. Thus, none of these commercial entities may legally install a sun screen device or other device on a vehicle, if the device would cause the vehicle to no longer comply with the requirements of Standards No. 111 and/or 205.

In addition, any manufacturer of motor vehicle equipment, such as a device that is mounted on the glazing of motor vehicles and that is not readily removable, is responsible for the recall and remedy of all such devices, if it is determined that the device contains a defect related to motor vehicle safety.

You should note that the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act does not affect vehicle owners, who may themselves alter their own vehicles as they please, without violating any provision of Federal law. Thus, Federal law would not prohibit you, as an individual vehicle owner, from installing any devices you wish in the windows of your own vehicle, even if such installation causes the vehicle to no longer comply with Standards No. 205, No. 111, or any other of our safety standards. The agency, however, urges vehicle owners not to take actions that would degrade the performance of the safety features designed into their vehicles.

However, you should also note that the individual States have the authority to regulate the operation and use of vehicles by their owners and modifications owners can make to their own vehicles. Each of the States have exercised this authority to establish requirements for vehicles to be registered and operated within their borders. I cannot advise you about the laws established by each of the States. If you wish to learn whether Virginia or any other State prohibits the installation of your device in a vehicle, you may wish to contact the Department of Transportation for those States in which you are interested.

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.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:205#111 d:4/14/92

ID: nht92-2.41

DATE: 11/09/92

FROM: MARION C. BLAKEY ADMINISTRATOR, NHTSA

TO: HONORABLE JOHN D. DINGELL -- CHAIRMAN, COMMITTEE ON ENERGY AND COMMERCE, U.S. HOUSE OF REPRESENTATIVES

COPYEE: MR. AARON GORDON

ATTACHMT: ATTACHED TO LETTER DATED 9-17-92 FROM JOHN D. DINGELL TO MARION C. BLAKEY

TEXT: Thank you for your letter of September 17, 1992, enclosing correspondence from Mr. Aaron Gordon concerning seat belts on school buses. You requested comments on Mr. Gordon's letter and on H.R. 896, a bill referred to in Mr. Gordon's letter.

The issue of safety belts on school buses is an important topic which the National Highway Traffic Safety Administration (NHTSA) has thoroughly studied for many years. School bus transportation has been and continues to be one of the safest forms of transportation in America. Every year, approximately 370,000 public school buses travel approximately 3.5 billion miles to transport 22 million children to and from school and school-related activities. Since NHTSA began tracking traffic fatalities in 1975, an average of 16 school bus occupants per year have sustained fatal injuries. While each of these fatalities is tragic, the number of school bus occupant fatalitie is small compared to the number of occupant fatalities to children in other types of vehicles. For example, in 1989 there were 5,287 deaths among children aged five to 18 in vehicles other than school buses.

In 1977, NHTSA issued Federal motor vehicle safety standard No. 222, School Bus Passenger Seating and Crash Protection, which established minimum crash protection levels for occupants of all school buses. For large school buses, those with a gross vehicle weight rating (GVWR) above 10,000 pounds, the standard requires occupant protection through a concept called "compartmentalization" -- strong, well-padded, well-anchored, high-backed, evenly spaced seats. The effectiveness of "compartmentalization" has been confirmed by independent studies by the National Transportation Safety Board (NTSB) and the National Academy of Sciences (NAS). Under the current requirements of Standard No. 222, small school buses, those with a GVWR of 10,000 pounds or less, must provide "compartmentalization" and be equipped with lap or lap/shoulder belts at all designated passenger seating positions. The agency believes that safety belts are necessary in addition to "compartmentalization" in small school buses because of their smaller size and weight, which are closer to that of passenger cars and light trucks.

In 1987, the NTSB completed a study of the crashworthiness of large school buses, and concluded that most school bus occupant fatalities and serious injuries were "attributable to the occupants' seating position being in direct line with the crash forces. It is unlikely that the availability of any type of restraint would have improved their injury outcome."

In 1989, NAS completed a study of means to improve school bus safety and concluded that "the overall potential benefits of requiring seat belts on large school buses are insufficient to justify a Federal requirement for mandatory installation. The funds used to purchase and maintain seat belts might better be spent on other school bus safety programs and devices that could save more lives and reduce more injuries." The NAS pointed out that since children are at greater risk of being killed in school bus loading zones (i.e., boarding and leaving the bus) than on board school buses, "a larger share of the school bus safety effort should be directed to improving the safety of bus loading zones." A summary of the NAS report is enclosed.

In response to the recommendations from the NAS study, NHTSA has initiated several rulemaking actions, such as improvements to school bus visibility by the driver and requiring stop signal arms on school buses, designed to improve the safety of students in school bus loading zones. Besides the actions taken in response to the NAS study, NHTSA has initiated several other rulemaking activities to improve further the safety of school buses, e.g., increasing the number of emergency exits, establishing wheelchair securement/occupant restraint requirements, and improving the body joint strength requirements.

While there are no Federal requirements for safety belts on large school buses, states are free to install them if they feel it is in the best interest in their state. However, as noted in the NAS report, if the safety belts are to be beneficial, "states and local school districts that require seat belts on school buses must ensure not only that all school bus passengers wear the belts, but that they wear them correctly."

In summary, the safety record of school buses is outstanding. As such, there is no compelling evidence to suggest that safety belts would provide even higher levels of occupant crash protection. Also, the agency agrees with the conclusion from the NAS report, that there is insufficient reason for a Federal mandate for safety belts on large school buses.

I hope you find this information helpful.

ATTACHMENT TRB REPORT SUMMARY, DATED MAY, 1989, ENTITLED SPECIAL REPORT 222-IMPROVING SCHOOL BUS SAFETY. (TEST OMITED)