ID: 169-n-b

Note Book 168

FEDERAL REGISTER NOTICES

Note Book 165

FEDERAL REGISTER NOTICES

ID: 16907-1.pja

Mr. Jason Backs
VP Operations
CPS Trailers
Highway 77, P.O. Drawer K
Oran, MO 63771

Dear Mr. Backs:

This responds to your letter requesting an interpretation of whether the bottom dump trailer that your company manufactures with a large push block at the rear would be excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, your trailer is not excluded but, assuming you are attaching an underride guard to the push block in the location that you drew on your diagram, your vehicle may already comply with our regulations.

Your letter attached a diagram of your bottom dump trailer. Attached to the rear and extending 25 inches behind the rear of the trailer is a push block, used by bulldozers to push the trailer out of soft ground at construction sites. Viewed from above, the push block shaped like a trapezoid with its long side attached to the trailer. It tapers to a width of 28 inches at its rear, which is 28 inches off the ground. Eleven inches forward of its rear a guard-shaped structure, which you refer to as the horizontal member of the push block, is attached to the bottom of the push block. The bottom of the guard-shaped structure is 19 3/4 inches above the ground. Based on a conversation with David Coleman of NHTSA's Office of Vehicle Safety Compliance,⁽¹⁾ you believe that the trailer is excluded from our regulations because it meets the definitions of two classes of excluded vehicles: the low chassis vehicle and the special purpose vehicle.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are low chassis vehicles and special purpose vehicles.

Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your vehicle that meets these configuration requirements is the guard-shaped structure attached to the underside of the push block⁽²⁾, so the question becomes whether this is considered to be part of the "chassis" of the vehicles. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. For most trailers that carry things, this means that the structure would have to contribute to providing underlying support for the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

Applying these principles to the horizontal member of your push block, we find that it is not part of the chassis. Although the push block and presumably also the guard-like structure are strongly attached to the chassis, they do not contribute to supporting cargo load. The push block itself is not part of the frame structure of the trailer, it is an attachment. Although you imply that the guard-like structure attached to the bottom of the push block is part of the push block, we consider it to be another attachment (to the push block). It does not define the outline of the trailer, but projects downward from an attachment to the rear of the chassis. Therefore, it is not part of the chassis, and the bottom dump trailer is not a low chassis vehicle.

We turn now to the question of whether the bottom dump trailer is excluded as a special purpose vehicle. A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽³⁾ Again, the guard-like structure on the underside of the push block is the only part of your trailer that, while the vehicle is in transit, resides in the area that could be occupied be the rear underride guard. Therefore, it would have to be considered work-performing equipment for the trailer to be excluded.

There is no definition in the standard for "work-performing equipment." In determining the meaning of regulatory language, the first place the agency looks is the plain meaning of the words. In the context which is relevant to this safety standard, "work" is defined as "the transfer of energy from one physical system to another; especially, the transfer of energy to a body by the application of force . . ." "Perform" is defined as "to begin and carry through to completion; do." American Heritage Dictionary of the English Language, 1971. Taken together, NHTSA interprets the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. The guard-like structure does not perform work in this sense. Its function is unclear. Even the push block does not perform work. Its function is to merely transmit the force of the bulldozer blade to the chassis of the trailer. Therefore, the guard like structure is not work-performing equipment, and the bottom dump trailer does not meet the definition of a special purpose vehicle. An underride guard would have to be provided on this vehicle.

However, your bottom dump trailer may already comply with the rule. You made several correct observations in your letter regarding the determination of the rear and side extremities. The rear extremity is defined in S4 of Standard No. 224 as " the rearmost point on the vehicle . . ." (not the chassis). Therefore, it coincides with the rearmost point on the push block. The side extremity is defined in S4 as "the outermost point on the vehicle's side that is located . . . between a transverse vertical plane tangent to the rear extremity of the vehicle and a transverse vertical plane located 305 mm forward of that plane." Since your push block tapers toward the rear, the side extremity coincides with the outer edges of the push block in a transverse plane one foot forward of the rear extremity. The bottom of the guard-like device extends to the side extremities and the 21 inch ground clearance meets the vertical height requirements of S5.1.2. Assuming the face of the horizontal member of the guard-like structure is at least 100 mm high, as required by S5.1 of Standard No. 223, the guard-like structure would meet all the configuration requirements of an underride guard. If it can pass the strength and energy absorption requirements as well, the guard like structure itself could be labeled and certified as a guard under Standard No. 223.

If you have difficulty meeting these requirements, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

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:224
d.5/22/98

1. We note that the Chief Counsel's Office is the only office in the agency that can issue interpretations of our regulations.

2. The push block itself is too high to meet the maximum height requirement of S5.1.2.

3. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

ID: 16908.nhf

Ms. Connie L. Stauffer
President
Lift-Aids, Inc.June 2, 1998
2381 Pecan Court
Fort Worth, TX 76117

Dear Ms. Stauffer:

This responds to your request for a letter stating that the agency will not enforce the "make inoperative" provision against you for modifying a Ford Windstar Minivan to accommodate your client who has a disability. I apologize for the delay in my response. In your letter, you stated that you need to replace the vehicle's original steering column and air bag with a horizontal steering column and steering control manufactured by Drive Master Corporation to accommodate your client who suffers from the disability "osteogenesis imperfecta," more commonly known as brittle bone disease. You explained that, due to her disability, your client is very small in stature and has limited mobility.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) 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 the National Highway Traffic Safety Administration (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.

Removing the original steering column and replacing it with a horizontal steering column could affect compliance with three standards: Standard No. 203, Impact protection for the driver from the steering control system, Standard No. 204, Steering control rearward displacement, and Standard No. 208, Occupant Crash Protection. For example, Standard No. 208 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 steering wheel and the driver's air bag 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 column 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 manufacturer should be able to provide information on how the modification can be safely performed. 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
ref:VSA
d.5/22/98

ID: 1691y

The Honorable Howard Wolpe
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Wolpe:

Thank you for your letter to former Secretary Burnley on behalf of your constituent, Mr. Dennis Furr of Lansing, Michigan. I've been asked to respond to your letter since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety.

Mr. Furr is concerned about the potential safety problems that may result if school bus seats are being overloaded. In particular, Mr. Furr asks whether NHTSA's Highway Safety Program Guideline (HSPG) No. 17, Pupil Transportation Safety (23 CFR /1204.4), is consistent with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School Bus Passenger Seating and Crash Protection (49 CFR /571.222), with regard to seating specifications. Mr. Furr is particularly interested in how manufacturers are calculating the number of seating positions on a bench seat.

I am pleased to address your constituent's concerns. Before I begin, I want to note that we have answered a number of similar inquiries from Mr. Furr in past years.

We have two sets of "regulations" for school buses. The first, issued under the Vehicle Safety Act, includes our motor vehicle safety standards which apply to the manufacture and sale of new school buses. Compliance with these standards is mandatory for new vehicle manufacturers, and is enforced by this agency with civil penalties. FMVSS No. 222, with which your constituent is concerned, is one such safety standard. The second set of "regulations," or guidelines, for school buses was issued under the Highway Safety Act. Guidelines issued under this Act are not mandatory for the states; rather, they are recommended practices. Highway Safety Program Guideline No. 17, to which Mr. Furr frequently refers in his letter, consists of recommendations to the States for operating their school buses and pertains to Federal funding of State highway safety programs.

Both FMVSS No. 222 and Guideline No. 17 contain specifications for school bus seating. Paragraph S4.1 of FMVSS No. 222 states: "The number of seating positions considered to be in a bench seat is expressed by the symbol W, and calculated as the bench width in inches divided by 15 and rounded to the nearest whole number." The guideline for seating accommodations in HSPG 17 states:

Seating should be provided that will permit each occupant to sit in a seat in a plan view lateral location, intended by the manufacturers to provide seating accommodation for a person at least as large as a 5th percentile adult female, as defined in 49 CFR 571.3.

Mr. Furr appears to see a conflict between the formula used in calculating the forces to be applied to the seats of large school buses under FMVSS No. 222, on the one hand, and the use by States and manufacturers of 13-inch seating positions for rating the capacity of a 39-inch seat, on the other hand. I believe that Mr. Furr's belief in the existence of a conflict rests on a misunderstanding.

We view Standard No. 222 and HSPG 17 as complementary, not inconsistent. HSPG 17 reflects NHTSA's belief that all school bus passengers should be seated in the interest of safety. To that end, the guideline provides that there should be a seating position for each passenger and that the position should be at least large enough to accommodate a 5th percentile adult female. The hip width (sitting) of a 5th percentile adult female is 12.8 inches.

The figure "15" in FMVSS No. 222's compliance formula is not a minimum requirement for the width of a seating position. It is the number which is used to establish the number of designated seating positions and ensures that the forces applied to the seat during compliance tests are reasonable reflections of the crash forces that would be involved in a real-world crash. It is also the number which ensures that the width of the smallest seat is approximately equal to the hip width of the 5th percentile female. That is consistent with HSPG 17 which provides that seating positions shall be at least large enough for a 5th percentile female. Use of the figure "15" in the FMVSS No. 222 formula results in a minimum seating position width of 12.67 inches (for a 38-inch wide seat.) That is only slightly smaller than the 12.8 inch hip width of the 5th percentile female. For a 39-inch wide seat, the single position width is 13 inches, which is slightly larger than the hip width of a 5th percentile female.

It should be remembered, however, that the number of seating positions derived from the FMVSS No. 222 formula is not meant to be a measure of the absolute capacity of the bus for all size occupants. We recognize that, in practice, school buses transport a tremendously wide variety of student sizes. For example, a bus that may be capable of easily accommodating 65 preschool or elementary students may be capable of carrying only 43 high school students. When the bus is used to transport students of widely varying ages and sizes, reasonable accommodations may vary between those values. The decision on how many passengers may be comfortably and safely accommodated, therefore, is a decision that must be reached by the bus operator, in light of the ages and sizes of passengers involved.

NHTSA does not have the authority under either the Highway Safety Act or Vehicle Safety Act to regulate how States use school buses. Therefore, NHTSA could not preclude a State from carrying more passengers on a bench seat than there are designated seating positions. However, this agency agrees with Mr. Furr that a student should not sit on a seat unless the student can sit fully on the seat instead of sitting only partially on the seat and thus only being partially protected by the compartmentalization. We believe that Mr. Furr's concerns as they apply to public schools would be best addressed by his working with the local school board and state officials.

Mr. Furr is also concerned about a reference in our occupant crash protection standard (No. 208) to a 95th-percentile adult male occupant size. He asks why FMVSS No. 222 uses a 15-inch seat dimension, when FMVSS No. 208 references the 95th-percentile adult male occupant size in specifying occupant sizes which safety belts must adjust to fit.

Both FMVSS No. 208 and FMVSS No. 222 are directed at providing occupant crash protection. Both of these standards set forth comprehensive requirements that are directed at protecting occupants likely to be inside a vehicle in a crash. With regard to school buses, the agency determined that the crash protection requirements should be developed taking into account the full size range of passengers typically riding on school buses. If we designed the force and deflection (energy-absorbing) characteristics of the seats for the 95th percentile males, the seats may be too stiff for a small child.

Finally, Mr. Furr asks whether, when voluntarily installing safety belts on large school buses, States are violating Federal law by using S4.1 of FMVSS No. 222 in determining how many positions (and belts) there are on a bench seat. The answer is no. FMVSS No. 222 requires safety belts only for the passenger positions of small (10,000 pounds or less GVWR) school buses. Under S5 of the standard, belts on a small school bus bench seat are installed at "W" seating positions, as determined under S4.1. If a State wishes to order belts on its new large school bus and to use the same method for determining the number of belts to be installed, the State may do so.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact me.

Sincerely,

Diane K. Steed /ref:VSA#222 d:2/23/89

ID: 16926.drn

Mr. Esko Lammervo
Marketing Manager
OY Talmu AB
FIN-24100 Salo
Finland

Dear Mr. Lammervo:

This responds to your letter asking whether your company's (Talmu's) warning triangles are excluded from Federal Motor Vehicle Safety Standard No. 125, Warning Devices. You state that some of your customers, European car manufacturers, are interested in using Talmu triangles in cars that will be exported to the United States. As explained below, because your warning triangles are designed to be carried in motor vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds (lb.) or less, they are excluded from the standard. However, since your product is "motor vehicle equipment," your company Talmu, as the manufacturer, may be subject to NHTSA's laws as described below.

NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Effective October 31, 1994, NHTSA amended Standard No. 125 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a GVWR greater than 10,000 lb. (See 59 FR 49586; September 29, 1994, copy enclosed.) If sold for use with buses and trucks with a GVWR greater than 10,000 lb., your company's warning triangles must meet Standard No. 125's detailed specifications for a warning device. However, if the warning triangle is sold for use with vehicles with a GVWR of 10,000 lb. or less, Standard No. 125 would not apply.

Bear in mind, however, that even if excluded from Standard No. 125, your warning triangle, as an item of "motor vehicle equipment," is regulated by NHTSA. Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If a manufacturer or NHTSA should determine that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. (This responsibility is borne by the vehicle manufacturer in cases in which your devices are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:125#VSA
d.2/26/98

ID: 16957.wkm

Mr. Lewis W. Hopkins
President, Auto-Trans
Post Office Box 771118
Memphis, TN 38177

Dear Mr. Hopkins:

This responds to your letter of January 14, 1998, addressed to Walter Myers of this office asking us to review your "Land Ferry" system, also called the Auto-Trans, and asking for "preliminary National Highway Traffic Safety Administration (NHTSA) approval for this alternative mode of interstate highway transportation." Please be advised that this agency does not grant such approvals, as explained below. In addition, your letter was styled "Confidential." However, when Mr. Myers explained to you in a telephone conversation on March 6, 1998 that we cannot give confidential interpretation letters, you withdrew your request for confidential treatment.

NHTSA has the statutory authority to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment (see 49 U.S. Code, Chapter 301). The FMVSSs apply to motor vehicles and equipment up to the first retail sale of such vehicles or equipment. Once a vehicle or item of equipment is sold to its first retail customer, NHTSA's authority terminates, with certain exceptions, and the use of that product becomes a matter of state jurisdiction. The law establishes a self-certification system in which manufacturers themselves certify that their products comply with all applicable FMVSSs. NHTSA enforces compliance with the standards by purchasing motor vehicles and equipment and testing them for compliance with applicable standards. NHTSA also investigates safety-related defects in motor vehicles and equipment. In view of the self-certification system, NHTSA neither approves, disapproves, tests, endorses, nor grants clearances for products prior to their introduction into the retail market.

The term "motor vehicle" is defined in 49 U. S. Code 30102(a)(6) as:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

With respect to the Auto-Trans, based on your description and the drawing you enclosed with your letter, both the tractor (driven by mechanical power) and the trailer (drawn by mechanical power), would be classified as motor vehicles. Thus, both parts of the unit would, when manufactured, be required to be certified by their manufacturer(s) as complying with all applicable FMVSSs. As you already know from your correspondence with the Federal Highway Administration, the operation of your Auto-Trans in interstate commerce would be governed by the Federal Motor Carrier Safety Regulations and the requirements of individual states through which your Auto-Trans operates.

Enclosed for your information are fact sheets prepared by this office entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, Where to Obtain NHTSA's Safety Standards and Regulations, and Federal Requirements for Manufacturers of Trailers.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures
Ref:VSA
d.4/29/98

ID: 16958.drn

Mr. Richard L. England
Director of Finance and Operations
Lick-Wilmerding High School
755 Ocean Avenue
San Francisco, CA 94112

Dear Mr. England:

This responds to your request for an interpretation whether a Ford dealership can remove two seats from a new passenger van, before first sale to the customer, so that the van would no longer be classified as a bus. The response is yes, but if the Ford dealership does so, it is responsible for certifying that the altered vehicle meets the National Highway Traffic Safety Administration's (NHTSA's) safety standards applicable to multipurpose passenger vehicles.

Some background information may be helpful in understanding our regulations. Under 49 U.S.C. Chapter 301 Motor Vehicle Safety, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) applicable to new motor vehicles, including school buses. In 1974, Congress amended this statute (then called the National Traffic and Motor Vehicle Safety Act) to direct NHTSA to issue FMVSSs on specific aspects of school bus safety. Under our regulations, a "bus" is any vehicle, including a van, that has a capacity of 11 persons or more. A "school bus" is a "bus" that is sold to transport children to or from school or school-related events. The Act requires that when a dealer sells or leases a new "bus" (a vehicle designed for 11 or more persons) to a school, that bus must be a certified school bus.

If a dealer permanently reduces the seating capacity of a bus to fewer than 11, the modified vehicle would no longer be a "bus." Because the dealer would not be selling a bus, the requirement to sell a school bus would not apply. However, a dealer modifying a vehicle in this manner would have other responsibilities as an "alterer" under our regulations (49 CFR 567.7). The dealer would be changing the vehicle's classification from "bus" to "multipurpose passenger vehicle" (MPV) and would have to certify that the vehicle meets NHTSA's safety standards for MPVs. I am, for your information, enclosing a copy of an April 2, 1996 interpretation letter to Sgt. Stephan C. Turner of the Michigan State Police, that addresses two hypothetical situations where a dealer changes the number of seats in a passenger van.

While NHTSA regulates the manufacture, sale and lease of new vehicles (including MPVs and school buses), this agency does not regulate used vehicles, or the use of vehicles. Therefore, how students are to be transported to and from school or school-related activities is determined by

State law. This is because the individual States, not the Federal government, have authority over the use of motor vehicles. However, use of vehicles other than school buses could result in increased liability in the event of an accident. You might wish to consult with your school's attorney and insurance company to discuss this matter. I must emphasize NHTSA's position that a vehicle meeting Federal school bus standards is the safest way to transport students. I encourage your school to give its most careful consideration to the possible consequences of transporting students in vehicles that do not comply with the school bus standards.

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:571.3#VSA
d.4/8/98

ID: 16959-1.pja

Mr. Kenneth Mannen
Hesse, Inc.
6700 Saint John Avenue
Kansas City, MO 64123

Dear Mr. Mannen:

This responds to your facsimile requesting an interpretation of whether the beverage delivery trailers your company manufactures are excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, two of these trailer designs are excluded, but one design is not. An underride guard complying with our regulations would have to be supplied for that one design.

From the drawings you sent, it appears that all three types of beverage delivery trailers are segmented, with 40-52 inch wide doors on the sides that slide up and down, providing access to the stacked beverages. They differ mainly at the rear. Thank you for clarifying certain aspects of your trailer construction during a June 11, 1998 telephone conversation with Paul Atelsek of my staff. The different trailer designs are addressed separately, below.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are wheels-back vehicles, special purpose vehicles, and low chassis vehicles.

Single Axle Beverage Delivery Trailer

The single axle trailer has the rearmost surface of its rear wheel currently located 12 to 13 inches forward of the rear of the rearmost point on the trailer bumper. You believe that this design is excluded if you assure that the rear wheel is 12 inches or less forward of the bumper by reducing the depth of the rear bumper or by moving the axle back. However you ask if it is necessary to alter your design to comply. Because the distance between the front of the bumper assembly and the rear tire is only 5 inches, you reason that the bumper could move forward only that distance before contacting the rear wheel and stopping.

Wheels-back vehicles, excluded by S3 of FMVSS No. 224, are defined in S4 as a "trailer or semitrailer whose rearmost axle is permanently fixed and is located such that the rearmost surface of [the tire] on that axle is not more than 305 mm forward of the transverse vertical plane tangent to the rear extremity of the vehicle." One relevant issue is whether the rear wheels are permanently fixed. The axles on your trailer do appear to be fixed, because the beverage bay located a few inches in front of the trailer cannot be moved. Another question is whether the rear surface of the rear wheels is within 305 mm (12 inches) of the trailer rear extremity. In your drawing, the rear wheels are within 12 inches of the rear of the bumper, so we assume these are excluded as wheels-back vehicles. However, your letter mentions that some of your trailers have rear wheels more than 12 inches forward of the trailer rear extremity ("distance from the rear of the tire to the back of the bumper of between 12 & 13 inches"). These vehicles would not be excluded as wheels-back, and a compliant guard would have to be provided.

The fact that the bumper could move only 5 inches forward during a crash does not change this analysis. While it is true, in the event of a crash, your trailers have the bumper mounting assembly between the colliding vehicle and the rear tires, the language of the standard does not create an exception for this situation. The exclusions in Standard No. 224 are generally designed for trailers for which guards are either unnecessary or impractical. Most wheels-back vehicles do not have the full-width, low bumper-type assembly that you provide. As you observe in your letter, you could relocate the axle rearward slightly, or decrease slightly the depth of the bumper and these vehicles would then be considered wheels-back. Another option is to certify your existing bumper, which appears to meet the configuration requirements of Standard Nos. 223 and 224, as a compliant guard, after assuring yourself that it also meets the other requirements of those standards.

Tandem axle beverage delivery trailer

This trailer has a beverage storage bay behind the rear tandems. The rear bumper on this trailer is mounted to the back of the rear storage bay at a height of 15 to 17 inches above the ground. There is a horizontal structural member made of extruded aluminum 2.5 by 6.5 inches in thickness running longitudinally on each side of the trailer at the bottom of the rear storage bay. There is also a horizontal structural crossmember of the same stock that connects, across the back of the trailer, the rear of these longitudinal structural members. This transverse structural member is supported in the center by a cross member extending diagonally down and to the rear, between the main frame rails of the trailer and the rear bumper/bulkhead. It is also supported by gussets attached to the main frame rails. The bottom of this transverse structural member is also 15 to 17 inches above the ground. You believe that this design is excluded because it meets the definition of a low chassis vehicle.

Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your trailer that may meet these configuration requirements is the transverse structural member under the floor of the rear storage bay. Therefore, the question becomes whether this structural member is considered to be part of the "chassis" of the vehicle. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. Generally, this means that the structure would have to contribute to supporting the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. Moveable components may "lock" into the frame structure sufficiently that they are integral with other frame members-in this situation NHTSA may consider the combined components to be one frame unit. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

Applying these principles to the transverse structural member at the bottom of your rear storage bay, we conclude that it is part of the chassis. The member underlies the rear storage bay and supports the beverages in that bay, so it is considered load supporting. It is also frame structure. The member is similar in size, and presumably in strength, with the other frame members. The member conforms with and helps to define the outline of the trailer. It is connected to the other frame members at least as strongly as the other storage bays, and likely more strongly, considering the diagonal member and the gussets. Therefore, we conclude that the member is part of the chassis, and the trailer is a low chassis vehicle, excluded from the underride guard requirements.

Tandem axle convertible beverage delivery trailer

This trailer is similar to the tandem axle trailer, with one major difference being that the rear bay loads from the rear instead of from the side. Another difference is that the rear compartment also does not extend downward as far on this design as it does on the tandem axle trailer. The bottom of the rear compartment is at the level of the frame rails, a few feet above the ground, instead of extending down to the 15 to 17 inch level. There are vertical structural members made of 6 inch channel in the rear corners of the trailer, forming the rear outside edges of the rear compartment. These channel members, as well as two vertical supports of rectangular tubing located farther inboard, extend downward below the bottom of the rear compartment, to within 14 to 20 inches of the ground. All of these vertical structural members are connected at the bottom across the back of the trailer by a transverse horizontal member composed of 5 inch high by 2.5 inch deep extruded aluminum tubing. This tubing resembles the horizontal member of a conventional underride guard. You state that you are not sure if this design is excluded.

Applying the same analysis as we applied to the tandem axle trailer, we conclude that this trailer is not a low chassis vehicle. The only part of the vehicle that meets the configuration requirements of S5.1.1 through S5.1.3 is the transverse horizontal member, so that would have to be considered to be part of the chassis for the vehicle to be excluded. This member hangs down from the rear of the trailer and forms no part of the rear compartment. Therefore, it fails the load supporting aspect of the definition. Consequently, it is not part of the chassis and the tandem convertible trailer is not excluded as a low chassis vehicle.

You asked if the addition of a "rail lift gate" to the rear of the convertible trailer would affect the compliance status of this trailer design. We assume you are asking this because you think the liftgate might result in the vehicle meeting the definition of an excluded "special purpose vehicle." A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽¹⁾ The liftgate meets the agency's definition of work performing equipment. However, it is our understanding that most rail-type liftgates stow high on the vehicle's rear end and move entirely rearward of the rear extremity. If this is the case, the liftgate would not occupy the area designated for the guard, at least not during transit. Therefore, even if equipped with a rail-type liftgate, the vehicle would not meet the definition of a special purpose vehicle. Because no other exclusions apply, this trailer would need to be equipped with a compliant rear underride guard.

We cannot provide a specific opinion on how your trailer might be redesigned to accommodate a guard. We note, however, that the transverse piece of rectangular tubing already appears to meet the configurational requirements for an underride guard. If it does not currently meet the strength and energy absorption requirements, you might be able to reinforce or otherwise modify the vertical supports sufficiently so that it would pass these requirements. If you can do this, the transverse horizontal member itself could be labeled and certified as a guard under Standard No. 223, Rear impact guards. Perhaps this solution would work for you. However, we emphasize that it is you, as the vehicle manufacturer, who is responsible for the vehicle's compliance with the standard.

If you have difficulty meeting these requirements, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note that Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

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,
Frank Seales, Jr.
Chief Counsel
ref:224
d.8/24/98

1. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

ID: 17022.wkm

Mr. Craig L. Nearman
Quality Control Manager
Load King
Post Office Box 427
Rose & Elm Streets
Elk Point, SD 57025

Dear Mr. Nearman:

Please pardon the delay in responding to your fax to Walter Myers of my staff in which you asked whether the dolly and booster on a heavy-haul trailer would be required to be equipped with an antilock brake system (ABS) in accordance with Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems (copy attached). The answer is no.

You enclosed a picture and drawings of the equipment you were referring to depicting a large trailer carrying a large earth mover. The trailer was equipped with a dolly on the front end and a booster on the back end, both presumably to help support the load on the trailer. You stated that the trailer has a gross vehicle weight rating (GVWR) of 164,920 pounds, the dolly a GVWR of 67,320 pounds and the booster a GVWR of 46,760 pounds. You stated that the trailer is excluded from the requirements of Standard No. 121 because it exceeds 120,000 pounds. You were unsure, however, about the status of the dolly and the booster.

Standard No. 121 applies to trucks, buses, and trailers equipped with air brake systems. Among other things, however, it does not apply to "any load divider dolly" (see S3(g) of Standard No. 121). "Load divider dolly" is defined in S4 as:

[A] trailer composed of a trailer chassis and one or more axles, with no solid bed, body, or container attached, and which is designed exclusively to support a portion of the load on a trailer or truck excluded from all the requirements of this standard.

It is clear from the picture and the drawings that you sent that both the front end dolly and the rear end "booster" meet the definition of "load divider dolly" and are therefore excluded from the requirements of Standard No. 121. Both are composed of a trailer chassis with no bed, body, or container attached; both have multiple axles; and both were designed exclusively to support the load on a trailer, assuming that the trailer itself is excluded from the requirements of the standard (see discussion on page 2). The wording of the definition does not restrict such support to only the front end. The support can be provided to any portion of the load, whether front or back.

A trailer is excluded from the standard if it has:

[A] GVWR of more than 120,000 pounds and whose body conforms to that described in the definition of heavy hauler trailer set forth in S4 (emphasis added).

"Heavy hauler trailer" is defined in S4 as:

[A] trailer which has one or more of the following characteristics, but which is not a container chassis trailer:

(1) Its brake lines are designed to adapt to separation or extension of the vehicle frame; or

(2) It s body consists only of a platform whose primary cargo-carrying surface is not more than 40 inches above the ground in an unloaded condition, except that it may include sides that are designed to be easily removable and a permanent "front end structure" as that term is used in 393.106 of [Title 49, CFR]. (NOTE: A copy of 49 CFR 393.106 is enclosed)

Since your trailer exceeds the 120,000 pound GVWR, it would be excluded from the provisions of Standard No. 121 if it also meets either of the characteristics of a heavy hauler trailer set forth above.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers of my staff at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Ref: #121
d.4\29\98

ID: 17026.drn

Mr. William Shima
Publicita
1090 W. Pender St., Suite 600
Vancouver, British Columbia V6E 2N7
CANADA

Dear Mr. Shima:

This responds to your January 22, 1998, request for confirmation that this agency's

February 7, 1984, interpretation that the Mercedes-Benz Unimog is not a motor vehicle has not changed. Without information about the Unimog as sold in 1998, I am unable to do so.

As you may be aware, the National Highway Traffic Safety Administration (NHTSA) interprets and enforces the laws under which the Federal motor vehicle safety standards are promulgated. NHTSA's statute defines "motor vehicle" as follows:

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.

Whether the agency considers any vehicle to be a motor vehicle depends on its use. Certain types of vehicles are not considered "motor vehicles." These include vehicles which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. Vehicles which frequently use the highway going to and from job sites, and stay at a job site for only a limited time, are "motor vehicles," since the on-highway use is more than "incidental."

The February 1984 interpretation letter was based on the then-existing Unimog, fourteen years ago. NHTSA has no information about the features of the 1998 Unimog, or whether the Unimog has significantly changed since 1984. Therefore, if you wish NHTSA to reexamine whether the Unimog is a motor vehicle, please provide us with information about the Unimog's features, as it is sold in 1998. We would need information about the configuration of the 1998 Unimog, and its top speed. As stated in our February 1984 interpretation letter, we would need to know whether the Unimogs are still marketed principally through farm machinery and heavy equipment dealers, and whether the vehicle would have affixed in the cab a label stating that the Unimog is not manufactured for highway use.

Please note also that any opinion NHTSA provides on the Unimog affects new Unimogs sold in the United States only. Transport Canada would determine whether Unimogs sold in Canada are considered motor vehicles.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.2/27/98