Interpretation ID: 86-2.8

TYPE: INTERPRETATION-NHTSA

DATE: 3/24/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Peter M. Kopanon -- Vehicle Inspection Services, Massachusetts Registry of Motor Vehicles

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your November 22, 1985 letter to our office concerning Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381). You asked several questions about the provision in @ 103(d) which permits a State to establish higher safety requirements for motor vehicles or motor vehicle equipment procured for its own use. In a January 31 telephone conversation with Ms. Hom of my staff, you explained that you were interested in how @ 103(d) applies to vehicles procured for school transportation purposes.

Section 103(d) of the Vehicle Safety Act states:

Whenever a Federal motor vehicle safety standard under this 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 vehcile 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.

Your first question asked whether vehicles "directly owned" by the Commonwealth or any of its political subdivisions fall within the category of vehicles procured by the State or its subdivisions for its own use. The answer is yes, if the governmental entities have purchased the vehicles for their own use. While governmental entities may specify additional safety features in their own vehicles, keep in mind that section 103(d) does not permit them to specify safety features that prevent the vehicle or equipment from complying with applicable Federal safety standards.

Your second question, referred to buses that are owned and operated by a private contractor who has contracted with Massachusetts or its political subdivisions to provide pupil transportation to and from public schools. You asked whether "vehicles privately owned while under contract with the Commonwealth or any of its political subdivisions" are considered "vehicles procured for the State's own use." The answer to your question is yes.

NHTSA addressed this question in an interpretation to the New York Department of Transportation in May 1976 (copy enclosed). In that letter, we concluded that a contractual arrangement between a State and a private contractor for the supply and operation of school buses for public school transportation is a "procurement" of those vehicles for the State's own use. The agency made this determination after reviewing the legislative history of @ 103(d), which indicated that Congress intended the term "procured for its own use" to refer to established practices used by governmental entities for obtaining goods and services. Those practices have included contracting for services from a private contractor who owns or leases the materials involved. Therefore, the State's provision of public school transportation is a service which can be obtained by contract from a private contractor, and those vehicles provided by the contractor would be considered "procured" for the State's own use. Massachusetts may therefore set requirements for those vehicles which impose a higher standard of performance than Federal standards, if the additional safety features do not prevent the vehicles from complying with applicable Federal safety standards.

As stated in our 1976 interpretation, however, vehicles "procured for [the State's] own use" would not include vehicles provided by a private contractor to transport students to private schools. Therefore, in response to your third question which asked whether the State may prescribe nonidentical safety standards for privately-owned school buses that transport children to private schools, the answer is no.

We note that your questions about @ 103(d) referred to motor vehicles which operate intrastate. Whether a vehicle operates in interstate commerce is not a condition affecting the applicability of @ 103(d) to the States. We believe that Congress intended the Vehicle Safety Act to regulate the manufacture and sale of all new motor vehicles, and did not limit the Act's requirements to vehicles which cross State lines. Further, as a practical matter, it is extremely unlikely that any vehicle would never be in interstate commerce at some time during its lifetime. For example, the delivery of the vehicle from its place of manufacturer to its original place of sale will generally involve movement in interstate commerce. In addition, whether or not the vehicles cross State lines, their use on public roads substantially affects interstate commerce and therefore is subject to Federal law. Thus, the effect of @ 103(d) on State standards is not conditioned on vehicle usage in interstate commerce.

I hope this information is helpful. Please do not hestate to contact my office if we can be of further assistance.

Sincerely,

ATTACH.

The Commonwealth of Massachusetts

Registry of Motor Vehicles

November 22, 1985

OCC 1599

Stephen P. Wood -- Assistant Chief Counsel for RULEMAKING, National Highway Traffic Safety Administration

Dear Mr. Wood: Thank you for your prompt and thorough response to my recent telephone inquiry regarding the transportation of school pupils. I am sure you understand the problems that arise when one attempts to dovetail Federal laws, rules and regulations with State laws, rules and regulations and then intelligently advises and/or directs others.

As I mentioned on the telephone, I have, and am sure will continue to have, questions in this regard and certainly appreciate your cooperation.

Attached is a copy of Motor Vehicle Safety Standard Section 1392. My concern is how you interpret the third sentence. Specifically, what is meant by "equipment procured for their own use"? Does this mean that the Commonwealth of Massachusetts may prescribe standards higher than a Federal standard on vehicles operated intrastate under the following conditions:

1. Directly owned by the Commonwealth or by any of its political subdivisions;

2. Vehicles privately owned while under contract with the Commonwealth or any of its political subdivisions;

3. Vehicles privately owned and operated transporting persons for hire.

Thank you for giving consideration to this request for information.

Very truly yours,

Peter M. Koparon, Director -- Vehicle Inspection Services

Enc.