Interpretation ID: aiam2245
Chief
Carrier Safety Bureau
Department of Transportation
1220 Washington Avenue
State Campus
Albany
NY 12226;
Dear Mr. Chauvin: This responds to your February 20, 1976, question whether this agenc considers Standard No. 222, *School Bus Passenger Seating and Crash Protection*, preemptive of New York State law or regulations mandating a 28-inch-high back and armrests for school bus passenger seating. Section 103(d) provides (15 U.S.C. S1392(d)):; >>>S 103<<< >>>(d) Whenever a Federal Motor vehicle safety standard under thi subchapter 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 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.<<<; Standard No. 222 specifies a formula for minimum seat back height tha necessitates a heights of at least 20 inches. It is the opinion of the NHTSA that any State requirement relating to seat back height, other than one identical to the Federal formula that establishes a minimum height of 20 inches, is preempted under S 103(d).; The second sentence of S 103(d) clarifies that the limitation on safet regulations of general applicability does not prevent governmental entities from specifying additional safety features in vehicles purchased for their own use. Thus, New York State or its political subdivisions could specify a seat back height higher than 20 inches in the case of public school buses. The second sentence does not, however, permit these governmental entities to specify safety features that prevent the vehicle or equipment from complying with applicable safety standards. A school bus manufacturer must continue to comply with all applicable standards.; There are presently no requirements in Standard No. 222 dealing wit armrests on school bus passenger seating. The question, therefore, becomes whether the Federal safety standards on school bus seating 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 574-126 (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), 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 requirement for armrests by New Yor State does not conflict with or otherwise impair our present regulation of school bus passenger seating, and that armrests are not within the intended scope of the present Federal safety standards. Therefore, Standard No. 222 is not preemptive of the New York State regulation of armrests.; Yours truly, Frank Berndt, Acting Chief Counsel