ID: 2657o

Robert J. Kaufman, Esq.
Gingold, Kaufman & Chaiken
400 Perimeter Center Terrace, N.E.
Suite 720
Atlanta, GA 30346-1234

Re: GK&C File # 1012-271

Dear Mr. Kaufman:

This responds to your recent letter concerning the advice I gave to a company called Auto Accessories, Inc., with respect to the installation of that company's armrests in Volvo 240 automobiles. More specifically, on behalf of your client, a Volvo dealership, you seek clarification of that advice and request copies of any information, e.g., tests or studies, regarding the armrests. I appreciate your client's concern for safety. For your information, I have enclosed a copy of my November 18, 1987 letter to that company, in which the advice was provided. I have also enclosed a copy of the armrest installation instructions that were proposed by Auto Accessories and discussed in my response.

Based on your reading of a letter from Auto Accessories to Volvo dealers (enclosed with your letter), you concluded that the armrest installation procedure "ostensibly was either approved, mandated, or suggested by the Department of Transportation." As you will see from my November 1987 letter, the Department did not take any of those actions.

This Department has no authority under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) to approve or endorse any items of motor vehicle equipment or installation procedures therefor. Instead, the Safety Act puts the responsibility on manufacturers to certify that their products comply with the applicable requirements (15 U.S.C. 1403), and obliges manufacturers, distributors, dealers, and motor vehicle repair businesses not to knowingly render inoperative any devices or elements of design in vehicles that were installed in compliance with applicable safety standards (15 U.S.C. 1397(a)(2)(A)).

In keeping with this statutory scheme, this agency did not make a determination in the November 1987 letter or on any other occasion that a dealer following the proposed installation instructions would or would not render inoperative a vehicle's compliance with the safety standards. The agency makes such determinations only in the context of an enforcement proceeding. Instead, my November 18 letter pointed out the element of design that might be rendered inoperative by installing the armrests, and advised Auto Accessories as the manufacturer to carefully examine its instructions to determine whether or not following them would result in a "render inoperative" violation. It appears from the Auto Accessories letter to dealers that that company believes the installation of its armrest would not result in any violations.

Our advice to dealers is essentially the same as the advice we gave to Auto Accessories. Dealers should examine the instructions to determine whether following them would render inoperative a vehicle's compliance with Standard No. 208 or any other standard. You may wish to contact Auto Accessories to learn more about the basis for its apparent belief that the installation of its armrest will not violate any requirements of the Safety Act.

As for the tests and studies you requested, again, because of our statutory scheme, we have not conducted any regarding the armrest or its installation. We would do so only in the context of an enforcement proceeding.

Please let me know if you have any further questions on this subject.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure ref:VSA d:2/18/88

ID: 2658o

Mr. Gary W. Rossow
Director, Government Technical Affairs
Freightliner Corporation
Charlotte Technical Center
9844 Southern Pine Boulevard
P.O. Box 7562
Charlotte, NC 282l7

Dear Mr. Rossow:

This responds to your letter requesting an interpretation of Standard No. l2l, Air Brake Systems. You asked whether a proposed design would meet the requirements of S5.l.2. Your question is responded to below.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment comply with applicable requirements. The following represents our opinion based on the facts provided in your letter.

Under section S5.l.2, trucks and buses are required to have the following equipment:

"Reservoirs. One or more service reservoir systems, from which air is delivered to the brake chambers, and either an automatic condensate drain valve for each service reservoir or a supply reservoir between the service reservoir system and the source of air pressure.

You stated that some of your existing air braked trucks utilize a supply reservoir or wet tank between the service reservoir system and the air compressor without using automatic condensate drain valves on the service reservoirs. You noted that the supply reservoir functions as a means of removing excess water vapor from the air supply to avoid water contamination of the braking system and works on thermodynamic principles whereby water condenses to a liquid as the hot compressed air cools.

Your proposed design would utilize an air dryer between the service reservoir system and the air compressor. According to your letter, the air dryer serves the same function as the supply reservoir in your existing system but works on a different principle. You stated that the moist, compressed air passes through a filter media contained in a small canister sized reservoir. The material, a desiccant, has a high chemical affinity for water. The water absorbs on the desiccant and is later purged by stored dry air. The air dryer would have an integral automatic condensate drain valve.

Since your proposed design would not include an automatic condensate drain valve for each service reservoir, the issue raised by your letter is whether it complies with S5.l.2's option for "a supply reservoir between the service reservoir system and the source of air pressure." You stated that you believe the air dryer with automatic condensate drain is the functional equivalent of the more generally accepted embodiment of a supply reservoir in the context of S5.l.2. You also noted that Standard No. l2l does not specify a separate volume for the supply reservoir, although it does require in S5.l.2.l that the combined volume of all service reservoirs and supply reservoirs be at least l2 times the total service brake chamber volume. You suggested that if the volume of the service reservoirs is l2 times the volume of the service brake chambers, it would appear that there is no requirement for a specific volume in the supply reservoir.

While Standard No. l2l does not include a definition for "supply reservoir," the term is one that is commonly understood. For example, you indicated in your letter that some of your current brake system designs utilize the "more generally accepted embodiment of a supply reservoir."

In considering whether a particular item of equipment can be considered a "supply reservoir," we believe that effect must be given to both "supply" and "reservoir." The dictionary defines "reservoir" as "a receptacle or chamber for holding a liquid or fluid, as oil or gas." The word "supply" is defined as "to furnish or provide." Random House Dictionary of the English Language (unabridged edition). The Society of Automotive Engineers (SAE) defines "air reservoir" as "(a) storage container for compressed air." SAE Recommended Practice J656g, "Automotive Brake Definitions and Nomenclature."

Thus, in order to qualify as a "supply reservoir," an item of equipment must hold or store air in order to furnish or provide the air to the rest of the brake system. The information provided with your letter does not provide sufficient information to determine whether your air dryer qualifies as a "supply reservoir." In particular, the information does not indicate whether the air dryer holds other than a de minimis amount of air. While your letter is correct that there is no requirement for a specific volume in the supply reservoir if the volume of the service reservoirs is l2 times the volume of the service brake chambers, an air dryer with a de minimis volume could not be considered to hold or store air in order to furnish or provide the air to the rest of the brake system. On the other hand, if a supply reservoir provides an air cleaning function as well as holding or storing air in order to furnish or provide the air to the rest of the brake system, it would still be a supply reservoir.

Sincerely,

Erika Z. Jones Chief Counsel

/ NCC-20:EGlancy:mar:2/2/88:Wang l959o:62992:OCC 926 CONCURRENCE: NRM-0l, NEF-0l cc: NRM-0l, NEF-0l Redbook, Std. l2l Interps, Std. l2l

ID: 2659o

Edwin Speas, Jr., Esq.
Special Deputy Attorney General
State of North Carolina
Department of Justice
P.O. Box 629
Raleigh, N.C. 27602-0629

Dear Mr. Speas:

I am responding to your letter of July 7, 1987, where you ask for some assistance with an issue facing your State's public school systems. You stated that some school systems have purchased vans that do not meet Federal school bus specifications. The school systems use these noncomplying vans primarily to transport school teachers and administrators, but the vans sometimes are used to transport students to extracurricular activities.

You ask two questions. The first question is whether Federal law prohibits a school system from using a van to transport students to extracurricular activities if the van does not meet Federal school bus standards. The second question is whether the Secretary of Transportation has adopted a regulation defining the term "significantly" as that term appears in 15 U.S.C. /1391(14).

The 1974 amendments to the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act or VSA) apply to any person manufacturing or selling a new "school bus." NHTSA defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold or introduced into interstate commerce for transporting students to and from school or school-related events. The VSA does not regulate the manner in which a person, including a school district, uses a vehicle it purchases. Therefore, the answer to your first question is that Federal law does not prohibit a school district from transporting students in a noncomplying vehicle.

On the other hand, the seller of these vans may have sold them in violation of Federal law if the seller had reason to know from factors such as the identity or activities of the purchaser that the purchaser intended to use or convert the vans to school buses. When NHTSA proposed to amend the definition of "school bus" in consequence of the 1974 VSA amendments, we anticipated that there may be circumstances in which a manufacturer has no reason to know that one of its dealers has sold one of its vehicles as a school bus. The agency expressly stated in the preamble to the proposal that if a dealer knowingly sold any multipurpose passenger vehicle (MPV) or bus capable of being converted and used as a school bus to a school or a school bus contract operator, then the dealer would be responsible for certifying the vehicle's compliance with school bus standards. 40 FR 40854, September 4, 1975.

NHTSA maintains its long-standing position that the seller is the person in the chain of distribution most likely to know of a vehicle's intended use, and remains accountable for selling a vehicle as a school bus if the seller has reason to know whether the buyer intends such use. 40 FR 60033, December 31, 1975.

Your second question involves the term "schoolbus" as it is defined in the Vehicle Safety Act, /102(14) [15 U.S.C. /1391(14)]. That provision reads:

"'Schoolbus' means a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." (Emphasis supplied.)

You ask whether the Secretary has adopted a regulation that defines the term "significantly" as it is used in this statutory provision. The answer is no. The question of whether a motor vehicle is "likely to be significantly used" for transporting students is one that the agency finds appropriate to resolve case-by-case, focusing upon the intended use of the vehicle. However, in the final rule amending the definition of "school bus," the agency stated its view that "the Congressional emphasis on 'significant use' of a vehicle (is) a direction to extend the school bus standards to all buses that transport students, whether or not it is their primary purpose." 40 FR 60033, 60034. Emphasis supplied. In expressing this view, NHTSA specifically rejected a Vehicle Equipment Safety Commission (VESC) suggestion that the agency find "significant use" only where a bus was to be used "primarily" for transporting students. Id. Emphasis supplied. Therefore, when the agency considers "significant use," the question of whether a vehicle primarily transports school staff is not determinative.

I hope you find this information helpful.

Sincerely,

Erika Z. Jones Chief Counsel ref:VSA#57l d:2/19/88

ID: 2659y

Marc J. Fink, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Washington, D.C. 20037-1194

Dear Mr. Fink:

This responds to your letter of May 25, l990, to Robert F. Hellmuth, Director, Office of Vehicle Safety Compliance, on behalf of your client, John A. Rosatti. Mr. Rosatti would like to import a nonconforming Porsche 959 into the United States as a "demonstration" car. He intends to promote business by displaying it in his automobile dealerships and does not intend to drive it on the roads. Specifically, he would like to display it in his Acura dealership to build showroom traffic. He has offered to remove the engine, and to declare that, if the car is transferred by sale or inheritance, "the new owner will be bound to keep the engine and body of the car separate."

In support of your request, you argue that entry into the United States is permissible pursuant to 49 CFR 591.5(j), which implements l5 U.S.C. 1397(j). This section provides that the agency may exempt any person from the prohibitions in sections 1397(a)(1)(A) and (c)(1) "upon such terms and conditions as [NHTSA] may find necessary solely for the purpose of research, investigations, studies, demonstrations or training, or competitive racing events."

We are unable to agree with your interpretation and arguments. The Imported Vehicle Safety Compliance Act of l988, which added l5 U.S.C. 1397(c) through (j), responded to a report of the General Accounting Office which indicated that a large number of nonconforming vehicles were being imported into the United States without sufficient assurances or evidence that they were being brought into compliance with all applicable Federal safety standards. The provisions that were enacted by Congress represent a significant, and, we believe, restrictive change from the regulations previously in force, and a clear directive to the agency to proceed in accordance with the new statutory language.

The agency's previous position is represented by language that you cite in the preamble of the final rule (which you term Supplemental Information) adopting Part 591:

"Importation for this class of noncomplying motor vehicles [i.e., demonstration vehicles] has been permitted pursuant to the assumption that motor vehicle safety would not be affected by the temporary importation of noncomplying motor vehicles not generally used on the public roads, and whose appearance on them would be limited." (54 FR 40076).

Under the previous regulation, vehicles could be imported for purposes of "show, test, experiment, competition, repair, or alterations" (19 CFR 12.80(b)(l)(vii)). You will note that, contrary to your parenthetical statement, the demonstration exception did not exist in the old regulation. The most appropriate exception in the old regulation for what your client contemplates was the one for "show." Under 591.5(j) of the new regulation, which follows the language of the statute, a vehicle may be imported for the purposes outlined in the second paragraph of this letter, none of which include "show." We interpreted "show" to mean "to cause to be seen," such as in a static display. We do not interpret the word "demonstrations" as encompassing static display; a vehicle is "demonstrated" to a prospective purchaser, for example, by allowing him or her to drive it on the public roads. However, with respect to the new regulation, we have interpreted the word "demonstration" only in the context of allowing importation of nonconforming vehicles by registered importers who wish to prove, or demonstrate, that the vehicle is capable of conformance modification under one of the provisions of 1397(c)(3)(A)(i). This, of course, is not the situation with your client, and we decline to provide the interpretation you suggest, as we do not believe that an importation under that circumstance accords with the intent of Congress.

Sincerely,

Paul Jackson Rice Chief Counsel ref:59l d:9/20/90

ID: 2660o

Mr. M. Arisaka
Manager, Automotive Lighting
Engineering Dept.
Stanley Electric Co. Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153
JAPAN

Dear Mr. Arisaka:

This is in reply to your letter of September 23, 1987, with respect to daytime running lamps (DRLs).

With reference to the Canadian proposal on this subject, you have noted that it would allow optically combining the DRL with the parking lamp, using dual intensity bulbs within the same housing and covered by the same lens. (As you may be aware, the Canadian government recently issued a final rule which adopted the proposal). You have further noted that the maximum candela output of the parking lamp together with the candela of the DRL will be greater than the maximum permitted for the parking lamp. You believe that under this circumstance the parking lamp does not have to conform to the maximum values specified, and have asked for our opinion of this matter.

Under the proposal by the United States, a DRL would have to be a lamp other than a parking lamp (proposed new paragraph S4.6.3(a)), because their brightness is inadequate for use as DRLs. However, the DRL could be incorporated into a multiple function lamp, one of whose functions is to serve as a parking lamp. A lamp with multiple functions must meet all requirements that apply when a specific function is being fulfilled. For example, a lamp that functions both as a parking lamp and a DRL and which is operated in daylight could act as either a DRL or a parking lamp, depending on the intensity of the light emitted, but it would have to meet the photometric requirements for the function being exercised. We cannot really be more specific in answering your questions, because we are still at the proposal stage of the rulemaking process. The final decision could differ.

Sincerely,

Erika Z. Jones Chief Counsel ref:108 d:2/19/88

ID: 2660y

Mr. William T. Mullen
Undersheriff of McHenry County, Illinois
2200 N. Seminary Ave.
Woodstock, IL 60098

Dear Mr. Mullen:

This responds to your letter asking about Federal requirements for safety belts in police cars. Specifically, you asked if your police department could legally remove the automatic belts that are installed and replace them with manual lap/shoulder safety belts. You stated that the reasons for making such a substitution would be to alleviate two problems your police officers have experienced with the automatic belts that were not present in older models that had manual lap/shoulder belts at the front seating positions. First, you said that the automatic belts result in a blind spot on the driver's left side. Second, you said that the automatic belts "prevent left arm movements" of your taller officers. I appreciate this opportunity to respond to your concerns.

I have enclosed copies of two previous letters we have written on the subject of removing or replacing occupant protection features from police cars. The first of these is a July 29, 1985 letter to Corporal Frank Browne and the other is a May 25, 1989 letter to Senator Harry Reid. These letters explain that new vehicles purchased by police departments must be certified as complying with the occupant crash protection standard (Federal Motor Vehicle Safety Standard No. 208). All cars manufactured on or after September 1, 1989 must provide automatic crash protection for front seat occupants. To date, manufacturers have provided automatic crash protection either by installing air bags or automatic safety belts. General Motors, the manufacturer of the police cars in question, has chosen to comply with the requirement for automatic crash protection by installing automatic safety belts in these cars.

Federal law prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from replacing the automatic belts in these police cars with manual lap/shoulder belts. Thus, none of these commercial entities could make such a replacement on behalf of the County without violating Federal law. However, Federal law does not prohibit individual vehicle owners from removing safety features from their own vehicles. Thus, McHenry County itself can replace the automatic belts in its own cars without violating any Federal law, just as any resident of McHenry County can remove any safety equipment they like from their own vehicles without violating any Federal laws. Such actions may, however, violate the laws of the State of Illinois.

I recommend that you carefully consider the effects of replacing the automatic belts in your police cars, even though Federal law does not prohibit the County itself from making these modifications to its own vehicles. The automatic belts in these cars help to assure safety belt use by police officers on the job. Particularly since the McHenry County police officers face the possibility of becoming involved in high speed pursuit situations, we believe it is important that they use safety belts for effective protection in case of a crash. If you decide to replace the automatic belts in these vehicles with manual lap/shoulder belts, we would urge you to take some actions to assure that the police officers will use the manual lap/shoulder belts every time they ride in the police cars.

I hope this information is helpful. If you have any further questions or need some additional information on this subject, please let me know.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosures

ref:208 d:9/l7/90

ID: 2661o

Mr. Richard L. Hutchison
Hutchison, Anders & Associates, P.C.
16860 S. Oak Park Av.
Tinley Park, IL 60477

Dear Mr. Hutchison:

This responds to your October 14, 1987, letter asking about the applicability of Safety Standard No. 301, Fuel System Integrity, to "replacement gas caps" that your client intends to market. I apologize for the delay in responding.

You said that several of your client's customers have requested this agency's approval of your client's product. You asked for confirmation of your understanding that the gas caps do not have to be approved by the National Highway Traffic Safety Administration (NHTSA) in order to be sold. Your understanding is correct. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards.

There is currently no Federal motor vehicle safety standard that is directly applicable to replacement gas caps. Safety Standard No. 301 applies only to completed new motor vehicles and specifies performance requirements that must be met by the fuel system as a whole following a barrier crash test. The standard does not apply to individual components of a fuel system or to aftermarket equipment for use on fuel systems.

Although Standard No. 301 would not directly apply to your client's replacement gas caps, there are responsibilities under Federal law of which your client should be aware. Manufacturers of motor vehicle equipment, which includes aftermarket gas caps, are subject to the requirements in sections 151-159 of the Vehicle Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities.

In addition, there are prohibitions against certain modifications of new and used vehicles. Section 108(a)(2)(A) of the Safety Act specifies that no manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a new or used motor vehicle in compliance with any applicable Federal motor vehicle safety standard. Therefore, no person in any of the aforementioned categories may place your client's gas cap on a motor vehicle if by so doing the vehicle's compliance with Standard No. 301 were negatively affected.

Whether or not your client's replacement gas cap could be installed by a person in one of those categories on a vehicle without destroying the vehicle's compliance with Standard No. 30l or any other Federal safety standard is a determination that must be made by any commercial business in the aforementioned categories of /l08(a)(2)(A) making the installation. NHTSA does not pass advance approval on motor vehicles or motor vehicle equipment prior to the actual events that underlie a modification and we are unable to offer any opinion on whether your client's gas cap would negatively affect a vehicle's fuel system performance.

The prohibition of /108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under Federal law, they may install or remove any items of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, the agency encourages vehicle owners not to remove or otherwise tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

We suggest that you contact the Environmental Protection Agency to see whether the EPA has any type of emissions standard that might affect your client's manufacture of his gas caps. The general telephone number for the EPA is (202) 382-2090.

I hope this information has been helpful.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

ref:301#VSA d:2/19/88

ID: 2661y

Satoshi Nishibori, Vice President
Industry-Government Affairs
Nissan Research & Development, Inc.
750 17th Street NW
Suite 902
Washington, DC 20006

Dear Mr. Nishibori:

This responds to your letter dated June 28, 1990 requesting an interpretation of how the requirements of FMVSS 101, Controls and Displays, would apply to two vehicle systems Nissan is considering using.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment comply with applicable safety standards. The following represents our opinion based on the facts provided in your letter and during a discussion between Kazuo Iwasaki of your staff and Mary Versailles of my staff in our offices on July 13th.

I. Car Phone

Nissan is considering introducing a car phone in certain passenger cars which has five illuminated displays. The first display shows the number being dialed. The display is illuminated whether or not the phone is in use, and the number dialed continues to be displayed while the phone is in use.

The second display illuminates the push buttons. The display becomes illuminated when the first button is pushed, and remains illuminated for 10 seconds.

The remainder of the car phone displays are LED indicators. The first indicator (IU) is illuminated when the phone is "in use". The second indicator (NS) is illuminated when cellular phone service is not available. The third indicator (RM) is illuminated when outside the system's local operating area if the system is able to lock onto an available phone line. It is our understanding that there will be times when none of these three LED's will be illuminated and times when more than one of the LEDs could be illuminated (for example, both the IU and RM indicators).

None of the car phone displays can be turned off while the ignition switch is in the "ON" position. The illumination is not variable in any display.

You asked whether the car phone displays are "telltales" or other "sources of illumination," within the meaning of section S5.3.5, and whether the system is consistent with the requirements of FMVSS 101.

Based upon our understanding of their functioning, the three LED indicators (IU, NS, and RM) would appear to be telltales. Both the IU and RM displays "indicate the actuation of a device", while the NS display indicates "a failure to function". Because the displays are not listed in the standard, and because they are exempt from the requirements of section S5.3.5 because they are telltales, they are not subject to any illumination requirements.

The other displays are not telltales. The functions of both the first display ("number dialed") and the second display ("push button") are not among those listed in the definition of a telltale. The "number dialed" display provides information in much the same way as a fuel gauge. The illumination of the push buttons functions to facilitate dialing.

Because these displays are not among those listed in Standard No. 101, and because they are not telltales, they are subject to the requirements of section S5.3.5. Therefore, these displays must "have either (1) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off." Based upon your description, none of these requirements are currently met.

II. Air-conditioning Indicator Light

In certain vehicles, Nissan uses an indicator light that is illuminated only if both the air-conditioning operating switch and the ignition switch are in the "ON" position. You indicate that you believe the indicator is a telltale, and that if it is a telltale "it would appear to meet the requirements of section 5.3.4, since the display is bright enough to be visible in all ambient lighting conditions."

Because the indicator light indicates actuation of a device, i.e., the air conditioner, you are correct that it is a telltale. NHTSA would like to clarify that, with the exception of the requirements of section S5.3.5, FMVSS 101 regulates only controls and displays listed in the standard. Since the air-conditioning indicator light you describe is not listed in the standard, and because telltales are exempt from the requirements of section S5.3.5, there are no illumination requirements.

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

Sincerely,

Paul Jackson Rice Chief Counsel /ref:101 d:9/l8/90

ID: 2662o

Leonard Cain, Director
School Building and Transportation
Mississippi State Department of Education
Suite 306, Sillers Office Building
P.O. Box 771
Jackson, MS 39205-077l

Dear Mr. Cain:

This letter responds to your inquiry of July 30, 1987, in which you pose some questions concerning the applicability of Federal motor vehicle safety standards and Standard 17 to certain vehicles used for transporting school students. I apologize for the delay in this response.

Before I answer your specific questions, I think it might be useful to give you some general information on the Federal role in school bus regulation. The National Highway Traffic Safety Administration (NHTSA) deals with school buses under two different Federal laws: the National Traffic and Motor Vehicle Safety Act of 1966 (Vehicle Safety Act), and the Highway Safety Act.

In 1974, Congress amended the Vehicle Safety Act and directed NHTSA to issue safety standards respecting certain elements of school bus performance, and addressing any person who manufactures or sells a new "school bus." The Federal Motor Vehicle Safety Standards issued under this Act are mandatory Federal standards that apply to school bus manufacturers and sellers. A school bus manufacturer must certify its vehicles as complying with Federal standards that are applicable to school buses. A seller may not sell a vehicle that does not comply with those standards if the seller has reason to know that the buyer intends to use the vehicle as a school bus.

NHTSA defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. Note that in determining whether a vehicle is a school bus, one must consider both the vehicle's seating capacity, and its intended use.

Under the Highway Safety Act, NHTSA has issued guidelines (23 CFR No. 17, Highway Safety Program Standard) that cover a wide range of subjects relative to school bus identification, operation, and maintenance. Different practices apply to "school vehicles" under the guidelines depending upon whether the vehicle is "Type I" or "Type II." This agency may recommend that an individual State adopt all or part of these guidelines as the State's own policy governing student transportation programs. However, pursuant to the Highway Safety Act, NHTSA does not require compliance with these guidelines. Instead, each individual State decides whether it will adopt some or all of these "Standard 17" guidelines.

Please keep this information in mind as I answer your questions in order. I have assumed in answering your questions that the activities to which you refer are school-related.

Question 1a: Does a vehicle (type 1 bus) purchased by a local public school district for transporting students for only activity purposes have to conform to all Federal Motor Vehicle Safety Standards?

The answer to your question is "yes." However, the agency's regulatory and enforcement authority is directed toward the person manufacturing or selling a school bus. This agency can not regulate purchase or use of a school bus, and consequently can not require a school district to purchase a particular kind of vehicle for transporting students. As noted above, the definition of "school bus" includes vehicles sold for transporting students to and from school-related events. An activity bus is a school bus under this functional definition. Therefore, a manufacturer or seller of a vehicle who has reason to believe that the vehicle's intended use is solely for transporting students to and from school-related activities must ensure its compliance with any Federal safety standard that applies to a school bus.

Question 1b: Does a bus purchased and used solely for activity purposes have to be painted school bus yellow?

School bus color is a matter addressed under the guidelines set out in "Standard 17" discussed above. Accordingly, the answer to your question depends on the laws and regulations of Mississippi. There is no Federal standard requiring that a manufacturer or seller paint a school bus a particular color.

Question 2a: Does a van (designed to carry 11 or more persons) purchased by a local public school district for transporting students for only activity purposes have to conform to all Federal Motor Vehicle Safety Standards?

Recall again that our regulations are directed to school bus manufacturers and sellers. A van designed to carry 11 or more persons, and intended to transport students to and from school-related events is a "school bus" under the agency's definition. Therefore, a manufacturer or seller would have to ensure the vehicle's compliance with any applicable Federal safety standard. To determine whether a local school district may use a noncomplying vehicle it purchases, you must look to state law.

Question 2b: Does a van purchased and used solely for activity purposes have to be painted school bus yellow?

Again, for the reasons set out in my answer to Question 1b, the answer to this question depends on the laws of your State.

I hope you find this information helpful.

Sincerely,

Erika Z. Jones Chief Counsel

ref:57l d:2/23/88

ID: 2662y

Mr. Gerald F. Vinci
Sun Refining and Marketing Company
Tenn Penn Center
1801 Market St.
Philadelphia, PA 19103-1699

Dear Mr. Vinci:

This responds to your August 14, 1990 letter and telephone calls about your plans to convert the fuel system on a vehicle from gasoline to propane. You said your company ("Sun Refining") would like to purchase a new vehicle and convert it for purposes of your own research, and will not be reselling the vehicle. You ask about the requirements that would apply to the conversion.

We do not have any requirements that would apply to the conversion if the conversion is made by Sun itself. The National Traffic and Motor Vehicle Safety Act and NHTSA's regulations generally do not apply to a vehicle after the vehicle is sold to a consumer (e.g., Sun) for purposes other than resale. Although the Act prohibits certain entities from tampering with or removing federally required safety features, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle.

However, in the event you have the conversion done by a party other than your company, Federal law may apply. Section 108(a)(2)(A) of the Safety Act prohibits vehicle manufacturers, distributors, dealers and repair businesses from knowingly rendering inoperative federally required safety features when modifying a vehicle. I have enclosed an information sheet that discusses the application of 108(a)(2)(A) to fuel system conversions.

NHTSA wishes to learn more about the safety of propane fuel systems and is considering a public announcement seeking information on various safety issues. We would, therefore, be interested in the results of your research when they're completed.

Even though your conversion would not be covered by the FMVSS's, we suggest you consult State law to see if the State has requirements for propane vehicles. In addition, other Federal agencies may have regulations for your vehicle. If your vehicle would be a commercial vehicle, the regulations of the Federal Highway Administration (FHWA) may apply. I have forwarded a copy of your letter to FHWA for their reply. You might also contact the Environmental Protection Agency (EPA) for information about the conversion. EPA's general telephone number is (202) 382-2090.

I hope this information is helpful. Please contact us if you have further questions.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure /ref:301#VSA d:9/l7/90