ID: ELECBIKEZTV

Mr. Adam Englund
Electric Bicycle Company, LLC
3601 Empire Avenue
Burbank, CA 91505

Dear Mr. Englund:

This responds to an undated letter of yours which we received on October 2, 1995. Initially, you requested interpretations of Federal Motor Vehicle Safety Standards (FMVSSs) Nos. 108, 116, 119, and 122 as they apply to the "EV Warrior," "an electric/human-powered bicycle" which your company intends to manufacture. Subsequently, on December 12, 1995, you informed Taylor Vinson of this Office by FAX that your company (1) had resolved its problems that would have raised questions with respect to Standards Nos. 108 and 119, and (2) only needed answers to its questions concerning Standards Nos. 116 and 122.

The EV Warrior comes within the definition of "motorcycle" for purposes of the FMVSSs. Occasionally, the FMVSSs prescribe lesser requirements for a subset of motorcycles with 5 or less horsepower, known as motor driven cycles. Although electric motors are not rated by horsepower, the size of the EV Warrior is consistent with that of a motor driven cycle. Accordingly, we believe that it is appropriate to consider it as such for purposes of the FMVSS.

The following issues remain:

1. FMVSS No. 116, Motor vehicle brake fluids.

You stated that the EV Warrior is equipped with a hydraulic disc brake that uses a green colored biodegradable synthetic oil, known as "Shell Naturelle HF-E 15." You further stated that this oil "is not in contact with any elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inner tube stock or natural rubber (NR)."

Your letter discusses the definitions for "brake fluid" and "hydraulic system mineral oil," argues that your fluid is neither, and concludes that there are no requirements under FMVSS No. 116 for the hydraulic system biodegradable synthetic oil used in the EV Warrior's hydraulic brake system.

Although we agree that the synthetic oil does not fall within either of those definitions in FMVSS No. 116, the implication of this fact is not that the use of the synthetic oil is unregulated by the standard. FMVSS No. 116 specifies the types of fluids that may be used in the braking systems of motor vehicles. Section S3, Application, states that FMVSS No. 116 "applies to all fluid for use in hydraulic brake systems of motor vehicles." (emphasis added). Section S5.3 requires each motor vehicle that has a hydraulic brake system to "be equipped with fluid that has been manufactured and packaged in conformity with the requirements of this standard." Since the synthetic oil cannot be manufactured in conformity with the standard, the EV Warrior would not comply with FMVSS No. 116 if its brake system used the oil you have described.

You informed this office that fluid conforming to FMVSS No. 116 may be incompatible with the seals currently specified for use in the EV Warrior's brake system. However, our technical analysis suggests that it might be relatively simple and inexpensive to fabricate seals from materials that are compatible with conforming brake fluids, thus allowing the EV Warrior to be equipped with fluid conforming to FMVSS No. 116 and to comply with S5.3 of the standard.

2. FMVSS No. 122, Motorcycle brake systems.

You stated that the EV Warrior will have a hydraulic brake system with no master cylinder reservoirs. You contend that because the hydraulic brake system will not have master cylinders, the motorcycle need not have master cylinder reservoirs. You ask whether the EV Warrior therefore will meet FMVSS No. 122. In the alternative, you ask for an interpretation stating that FMVSS No. 122 applies to an open system that requires a reservoir, but not to a closed, actuator system (in which a reservoir serves no purpose).

FMVSS No. 122 (unlike FMVSS No. 105) does not define a motorcycle hydraulic service brake system, and does not specify design requirements for such. Paragraph S5.1.2 of FMVSS No. 122, specifying requirements for motorcycle hydraulic service brake systems, states that "[e]ach motorcycle equipped with a hydraulic brake system shall have the equipment specified in S5.1.2.1 and S5.1.2.2." S5.1.2.1 specifies that each master cylinder shall have a separate reservoir and S5.1.2.2 specifies reservoir labeling. S5.1.2.1 may be read as assuming, but not requiring, that a motorcycle hydraulic service brake system will have master cylinders. Therefore, we agree that because your brake system does not have master cylinders, there is no requirement for reservoirs or for reservoir labeling.

Nevertheless, because we understand this brake system can be opened for the purpose of adding or changing the fluid used in it, and because fluid used in the EV Warrior's brake system may be susceptible to contamination, we urge you to inform the purchaser, by a label on the machine or warning in the operator's manual, that care is required when the filler cap is removed.

If you have any further questions, you may phone Taylor Vinson of this Office (202-366-5263).

Sincerely,

Samuel J. Dubbin Chief Counsel

ref:108#116##119#120#122 d:1/19/96

Your requests for confidentiality, as modified after discussions with this office, were granted on October 27, 1995, by the Assistant Chief Counsel for General Law.

ID: Ellerltr

Ms. Penny Eller
1006 South Road
High Point, NC 27262-7944

Dear Ms. Eller:

This responds to your telephone inquiry asking if a repair business or dealership is obligated to restore an automatic shoulder belt which is no longer functioning to its original condition or if it is permissible for the belt to be repaired so that it operates manually.

As discussed below, Federal law does not require that the automatic belt system be restored to its original condition. However, this subject area could be covered by State law.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new motor vehicle equipment. One of the standards we have issued is Standard No. 208, "Occupant Crash Protection" (49 CFR 571.208). During those model years in which automatic belt systems could be used to comply with Standard No. 208, manufacturers installed automatic belts in passenger cars and light trucks as one method of complying with the occupant protection requirements of Standard No. 208.

While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law does limit the modifications that can be made by certain businesses to used vehicles. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of a design installed on or in a motor vehicle in compliance with an applicable safety standard (49 U.S.C. 30122).

The "make inoperative" provision would prohibit a dealer or repair business from knowingly disabling safety equipment, such as an automatic belt, installed in compliance with an applicable safety standard. However, the provision does not impose an affirmative duty on dealers or other persons to repair equipment on a used vehicle that has ceased to function. Therefore, Federal law does not require restoration of a damaged or broken automatic belt in a used vehicle.

Despite the absence of any requirement in Federal law, State law may require restoration of automatic belts to their original condition. You may wish to contact the State of North Carolina to learn if there are any applicable laws or regulations. Additionally, you may wish to consult a private attorney about liability concerns, particularly if you sell the car.

In addition to the legal considerations, I note that, for vehicles being repaired for road-use, NHTSA recommends the repair, restoration, or replacement of all safety systems that may have been damaged in a crash or has otherwise ceased to function. These systems include the safety belts, air bag systems (including sensors), built-in child restraints, and other vehicle systems such as brakes, accelerator controls, transmission gear and "park" function, etc.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:208
d.6/20/00

ID: elliswatts_6838

Mr. John E. Getz
Vice President, Mobile Products Engineering
Ellis & Watts
4400 Glen Willow Lake Lane
Batavia, OH 45103




Dear Mr. Getz:

This responds to your letter in which you asked whether the requirements of Federal Motor Vehicle Safety Standard (FMVSS) Nos. 403, Platform lift systems for motor vehicles, and 404, Platform lift installations in motor vehicles, are applicable to lift equipped trailers produced by your company. As explained below, FMVSS Nos. 403 and 404 are applicable to lifts and trailers, as you have described.

By way of background, the National Highway Traffic Safety Administration (NHTSA) has authority to prescribe safety standards applicable to new motor vehicles and new items of motor vehicle equipment (49 U.S.C. Chapter 301). Under this authority, NHTSA adopted FMVSS Nos. 403 and 404, which establish minimum performance standards for platform lifts designed for installation on motor vehicles and motor vehicles installed with platform lifts, respectively. The purpose of the standards is to protect individuals that are aided by canes, walkers, wheelchairs, scooters, and other mobility devices and rely on platform lifts to enter/exit a motor vehicle. The standards were established December 27, 2002. Compliance with FMVSS No. 403 has been required as of April 1, 2005. Compliance with FMVSS No. 404 has been required as of July 1, 2005.

In your letter, you stated that your company manufactures trailers equipped with mobile medical units (e.g. , MRI, PET, PET/CT units). You explained that all of these units have lifts that are used by patients on gurneys and wheelchairs as well as ambulatory patients. You further stated that patients are not transported in the trailers, and that when on location the trailers are essentially "fixed medical suites". You then stated that you believe these lifts would be considered "special purpose lifts," which as discussed in an October 1, 2004 final rule, are not subject to FMVSS No. 403 (69 FR 58843). You further stated that while the lifts installed by your company do not comply with specific requirements of FMVSS No. 403, the lifts as manufactured do provide for safe operation.

In the final rule in which FMVSS Nos. 403 and 404 were established, we stated that individuals that rely on platform lifts should have assurances that lifts are as safe as possible and that these individuals should be protected from the risk associated with using unregulated equipment (67 FR 79418). Providing lift users with such assurances necessitates the uniformity of performance of the regulated lifts. This was in part the purpose for establishing uniform standards applicable to all platform lifts manufactured for installation on motor vehicles and to motor vehicles equipped with such lifts.

The lifts as you described would be subject to the requirements of FMVSS No. 403. Further, a motor vehicle, including a trailer, equipped with a lift as you described would be subject to the applicable requirements of FMVSS No. 404. In the October 2004 final rule, the agency did state that FMVSS No. 403 would not apply to what some commenters referred to as "special purpose lifts," e.g. , lifts designed specifically to transport gurneys or mobile incubators. We clarified that FMVSS No. 403 is applicable to lifts manufactured to assist individuals that rely on canes, wheelchairs, and other mobility devices (69 FR 58844). The lifts you described are manufactured to transport individuals relying on canes and wheelchairs. Therefore, the lifts would be subject to FMVSS No. 403.

In further support of your assertion that FMVSS No. 403 was not intended to apply to lifts as you described, you noted that the applicability section of FMVSS No. 403 (S3) states that the standard applies to platform lifts that are designed to carry passengers into and out of motor vehicles. You stated that because your trailers do not transport people, the individuals that rely on the platform lifts are not passengers. Therefore, you concluded that FMVSS No. 403 does not apply to the lifts manufactured by your company.

The issues associated with safe operation of platform lifts as persons enter and exit a vehicle are not dependent on whether the person is also transported in that vehicle to another location. As stated in S1 of FMVSS No. 403, the standard "specifies requirements for platform lifts used to assist persons with limited mobility in entering or leaving a vehicle". As such, platform lifts installed on trailers are subject to the requirements of FMVSS No. 403 and those trailers are subject to FMVSS No. 404.

Your letter continued that if FMVSS Nos. 403 and 404 were applicable to the lifts installed on the trailers manufactured by your company and to the trailers, compliance with several provisions of the standards would conflict with the operation of the trailer as a medical suite. For example, you noted that the audible threshold warning required for public use lifts (S6.1.5 of FMVSS No. 403) could unduly disturb elderly or sedated patients. You also informed Mr. Chris Calamita of my staff that the visible threshold warning could prove to be an annoyance.

It is important to note that FMVSS Nos. 403 and 404 differentiate between public use lifts and private use lifts, and that different requirements apply based on a lifts designation. Under S4.1.1 of FMVSS No. 404, lift-equipped buses, school buses, and MPVs other than motor homes with a gross vehicle weight rating greater than 4,536 kg (10,000 lbs. ) must be equipped with a lift that complies with the public lift requirements of FMVSS No. 403. All other vehicles, including trailers, must have a lift that complies with either the public or private use lift requirements. Several of the requirements with which you raised issue, including the audible threshold warning, are specific to public use lifts. The public use lift requirements would not apply to the case addressed here, as your trailers would not be required to be equipped with such lifts.

If you have any additional questions, please contact Mr. Calamita of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:403#404
d.11/4/05

ID: EPA_008378.cmc.2

Mr. Anthony J. Tesoriero
United States Environmental Protection Agency
National Vehicle and Fuel Emissions Laboratory
2565 Plymouth Road
Ann Arbor, MI 48105-2498

Dear Mr. Tesoriero:

This is in response to your letter and phone conversations with my staff requesting an explanation of the Federal motor vehicle safety standards (FMVSS) applicable to the modification and operation of motor vehicles for experimental purposes. As explained below, the applicability of the FMVSS is dependent upon when the vehicles are altered in relation to the vehicles certification, and the type of entity installing the experimental system.

In your letter you stated that the Environmental Protection Agency (EPA) was planning to modify a total of six vehicles through the installation of an experimental hybrid drive system. Your letter further stated that several of the vehicles would be retained at the National Vehicle and Fuel Emissions Laboratory (NVFEL) for testing and demonstration purposes, and that the remaining vehicles would be loaned to vehicle fleet operators in order to gain performance and durability data. Initially you stated in a phone conversation with Mr. Chris Calamita of my staff that several vehicles would be purchased by NVFEL as chassis-cabs, while others would be purchased "retail" from a local automotive sales dealer. You explained that the installation of the experimental drive system would be performed by EPA personnel and engineers contracted from outside engineering firms. In a subsequent phone conversation, you stated that only fully certified vehicles that have been purchased and are owned by the EPA would be modified. As such we will address only those issues regarding the modification of fully certified vehicles owned by the EPA.

Additionally, you requested that the plans and details about these vehicles incorporated into your letter be kept confidential. In response to your request, it is our

position that this information is exempt from disclosure under exemption 5 of the Freedom of Information Act (5 U.S.C. 552(b)(5)). Accordingly, we will honor your request that the information be granted confidential treatment.

The National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS) that apply to the manufacture and sale of motor vehicles (49 U.S.C. Chapter 301). Pursuant to 49 U.S.C. 30112(a):

[A] person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction into interstate commerce, or import into the United States, any motor vehicle unless the vehicle complies with [all applicable FMVSS] and is covered by a certification issued under Section 30115 of this title.

Generally, our standards do not apply to vehicles after the first sale for purposes other than resale (first retail sale). Under 49 CFR Part 567, Certification (enclosed), it is the manufacturer that must certify that a vehicle complies with all applicable FMVSS.

While the Section 30112(a) applies only new motor vehicles, 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 (49 U.S.C. 30122). Accordingly, the "make inoperative" provision does not apply to any entity so long as that entity is not of the type listed above and does not fall with in the definition of "motor vehicle repair business." The agency has defined "motor vehicle repair business" as follows:

The term motor vehicle repair business is defined in 49 U.S.C. 30122(a) as "a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment." This term includes businesses that receive compensation for servicing vehicles without malfunctioning or broken parts or systems by adding or removing features or components to or from those vehicles or otherwise customizing those vehicles. (49 CFR 595.4.)

Based on your letter and subsequent conversations, it appears that the vehicles in question will not be modified by an entity specified in 49 U.S.C. 30122. As such, the prohibition would not apply.

Your letter also asked about regulations governing the operation of the experimental vehicles. NHTSA does not regulate the operation (i.e., use) of motor vehicles, which is generally under the jurisdiction of the States. Additionally, the individual States have the authority to regulate the modifications that may be made to a vehicle by its owner. We recommend that you check with the appropriate State authorities to determine if any State laws would be applicable to the modification and operation of these vehicles.

If you have any further questions, please contact Mr. Chris Calamita, of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:121
d.3/1/04

ID: ES004934

Mr. Gerald Plante
Manager, NHTSA Compliance
Fuji Heavy Industries USA, Inc.
Subaru Plaza
P.O. Box 6000
Cherry Hill, NJ 08034-6000

Dear Mr. Plante:

This is in response to your recent e-mail to Mr. George Feygin, in which you requested clarification of the June 3, 2004, final rule responding to petitions for reconsideration, which amended Federal Motor Vehicle Safety Standard (FMVSS) No. 110, Tire Selection and Rims for Motor Vehicles with a GVWR of 4,536 Kilograms (10,000 Pounds) or Less (69 FR 31306). Paragraph S4.3(h) of that standard allows a vehicle manufacturer to place an optional bar code or vehicle identification number (VIN) on the righthand edge of the vehicle placard and tire information label. Specifically, you asked whether it would be permissible under paragraph S4.3(h) to continue the use of certain two-letter codes on the vehicle placard to track and coordinate the correct application of specific placards with specific vehicle types on or after September 1, 2005, the effective date of the rule.

By way of background, the June 3, 2004, final rule is related to an earlier final rule published on November 18, 2002, which sought to improve the information readily available to consumers about tires (69 FR 69600). The National Highway Traffic Safety Administration (NHTSA) has stated that it believes that overcrowding the vehicle placard and tire inflation pressure label with information considered non-critical for regular maintenance would discourage the use of tire inflation pressure information in those key locations, so the agency decided upon a general prohibition against the addition of "other information" to these sources (69 FR 31306, 31311).

As you are probably aware, the agency is in the process of responding to petitions for reconsideration of the June 3, 2004, final rule, and we expect to issue our response shortly. Our review suggests that the issue raised in your recent e-mail is already before the agency in the context of a petition for reconsideration submitted by the Alliance of Automobile Manufacturers (Alliance) (Docket No. NHTSA-2004-17917-4). The Alliances petition seeks to amend paragraph S4.3(h) to permit inclusion of an optional part number on the righthand edge of the vehicle placard and tire information label. We view the two-letter code described in your correspondence as a variation of the part number issue discussed in the Alliances petition, and we will address the issue you raise in our response to the petitions for reconsideration.

Beyond the code marking issue, please note that the Fuji label provided with your correspondence does not follow the format specified in paragraph S4.3 and Figure 1 of the June 3, 2004 final rule for FMVSS No. 110. Specifically, paragraph S4.3 provides in relevant part, " This information shall be in the English language and conform in color and format, , as shown in the example set forth in Figure 1 in this standard."

Should you have any remaining or additional questions once the response to the petitions for reconsideration is published, please feel free to submit them to the agency. If you have further questions in the interim, you may contact Mr. Eric Stas of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman Chief Counsel

ref:110
d.9/10/04

ID: ES02-002690

Bruce Vokoun
3745 Pioneers Blvd.
Lincoln, NE 68506

Dear Mr. Vokoun

This responds to your correspondence directed to Senator Nelson and forwarded to the U.S. Department of Transportation regarding the obtainment for you of a waiver of DOT's regulations so that you may obtain a non-breakable windshield. I apologize for the delay in our response. As explained below, the agency has determined that an exemption for your windshield from the requirements of the National Highway Traffic Safety Administration's (NHTSA) Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing materials (49 CFR 571.205) is permissible in this situation.

By way of background, the NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (49 U.S.C. 30101, et seq.).

One of the agency's most important functions under the Act is to issue and enforce FMVSSs. These standards specify safety performance requirements for motor vehicle and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

FMVSS No. 205 establishes performance and marking requirements for all glazing installed in motor vehicles. The standards incorporates by reference the requirements of Standard ANS Z-26, "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways," of the American National Standard Institute. Standard ANS Z-26 requires that glazing materials for windshields must pass a specified group of test requirements designed to address safety concerns related to both visibility and occupant protection in the event that the windshield breaks. Under Federal law, dealers and motor vehicle repair businesses normally are prohibited from deactivating components that have been installed to comply with such safety standards.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). The exception, codified at 49 CFR Part 595, was limited to modifications made after the first retail sale of the vehicle. Accordingly, it does not apply to vehicle manufacturers or alterers. Vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

While portions of several FMVSSs are included in the Part 595 exemption, FMVSS No. 205 is not. This is because NHTSA is generally unaware of circumstances where there would be a need to install glazing materials that do not meet the standard. NHTSA does, on occasion, issue letters of non-enforcement to address vehicle modifications that are not covered by the Part 595 exemption. In accordance with our policy of case-by-case consideration of specific situations, and in view of your son's medical condition, NHTSA will not enforce this provision against any dealer or repair business that installs a non-breakable windshield in your vehicle.

You should show this letter to your dealer or repair business when you take your vehicle to have the windshield replaced. If the dealer or repair business wishes to verify the authenticity of this letter, they may call the telephone number below.

Because of the safety benefits provided by glazing that complies with FMVSS No. 205, we strongly urge you to have the original windshield reinstalled in your vehicle prior to selling your vehicle. In addition, it is imperative that you use your safety belt at all times.

If you have any questions, pleas call Nancy Bell of my staff, who may be reached at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:205
d.4/18/03

ID: ES05-007900drn

The Honorable J. Randy Forbes
Member, U.S. House of Representatives
2903 Boulevard, Suite 8
Colonial Beach, VA 23834




Dear Congressman Forbes:

Thank you for your inquiry on behalf of your constituent, Mr. Chris Thompson of Richmond, who asks about our school bus regulations.

Mr. Thompson is the director of administrative support services for Jackson-Feild Homes (Jackson-Feild), a residential group home. Jackson-Feild is preparing to purchase a 12-passenger van. The motor vehicle dealership asks that Mr. Thompson provide a statement that Jackson-Feild is "purchasing this vehicle in compliance with Federal Regulations".

Mr. Thompson describes his facility as follows:

Jackson-Feild Homes is a residential group home for abused adolescent females ages 11 to 17 and their babies. Many of our residents exhibit behavioral problems because of previous abuse and neglect. Jackson-Feild Homes operates 4 cottages (units). The units are designed to assist the girls with management of their behaviors through a well established behavioral management program which utilizes a points and level system in order to set limits and maintain structure. The girls also receive therapy services on site. The girls live on campus, eat in our cafeteria, and go to Gwaltney School which is located on our campus. Our girls walk to school from their dormitories. We do not transport day students to the school. In order to attend our school, the child must live on campus. Gwaltney School is a fully accredited private school licensed by the [Virginia] Department of Education.

We currently operate Windstar type vans (7 passenger), a Ford Taurus (5 passenger) and several 12 and 15 passenger Ford Vans. We use these vehicles to transport residents to doctors appointments, the movies, skating, etc. Each living unit is assigned a vehicle. Each living unit houses between 10 and 14 residents. We also

have transportation staff which assist the unit staff in transporting residents. Our school also takes an occasional field trip and we use the previously stated vehicles to transport our residents to the field trips. The school conducts an average of 4 field trips a year. These field trips are the only trips associated with the school. All other transports are related to unit (dormitory) activities.

Discussion

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling a new vehicle to sell a vehicle that meets all applicable FMVSSs. Accordingly, persons selling a new "school bus" must sell a vehicle that meets the FMVSSs applying to school buses. Our statute defines a "school bus" as any vehicle that is designed to carry 11 or more persons and which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events.

Over the years, we have been asked to interpret how our school bus regulations apply to vehicles sold to residential treatment facilities (see a July 15, 1999, letter to Ms. Sharon Elsenbeck and an April 8, 1998, letter to Mr. Gary Hammontree, copies enclosed). However, unlike the Jackson-Feild Homes, these facilities did not have a school as part of their facility.

Federal law has been revised since the letters to Mr. Hammontree and Ms. Elsenbeck. On August 10, 2005, P.L. 109-59, the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU) was enacted. Section 10309 states in part:

a school or school system may not purchase or lease a new 15-passenger van if it will be used significantly by, or on behalf of, the school or school system to transport preprimary, primary, or secondary school students to or from school or an event related to school, unless the 15-passenger van complies with the motor vehicle standards prescribed for school buses and multifunction school activity buses under this title.

For purposes of Section 10309, 15-passenger van is defined as:"a vehicle that seats 10 to 14 passengers, not including the driver". The civil penalty for a violation of Section 10309 is $10,000, with a maximum penalty of $15,000,000 for a related series of violations.

The relationship between Jackson-Feild and Gwaltney school is unclear to us. We cannot determine, based on Mr. Thompsons information in his letter, that Jackson-Feild is a separate entity from the Gwaltney School. Because of this possible exposure to the new statutory civil penalty provision for purchases of new "15-passenger vans" (which, by definition, includes purchases of 12-passenger vans), we recommend that Mr. Thompson consult a private attorney about the implications associated with Jackson-Feilds purchase of a van that did not meet the school bus safety standards if the facility were subsequently deemed to be a "school".

Before Mr. Thompson makes a decision about buying a vehicle, we wish to emphasize that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSAs school bus safety standards. NHTSA created a vehicle type, the multi-function school activity bus (MFSAB), for situations similar to that of Mr. Thompson. A MFSAB is a bus that is certified as meeting the school bus standards and therefore provides a comparable level of crash-worthiness safety as does a school bus. The main difference between MFSABs and school buses is that MFSABs do not have traffic control features such as the school bus stop arm and the rear flashing lamps.

We note also that State law determines the requirements that apply to the use of school vehicles. Thus, whether Jackson-Feild can use vans to transport the children is determined by Virginia law. For information on Virginias requirements, Mr. Thompson may contact Virginias State Director of Pupil Transportation:

June Eanes
Associate Director, Pupil Transportation
Virginia Department of Education
P.O. Box 2120
Richmond, VA 23218-2120
Phone: 804-225-2037
e-mail:jeanes@mail.vak12ed.edu

If you have any further questions about NHTSAs programs please feel free to have your staff contact Dorothy Nakama, Attorney-Advisor, or me at this address, or at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

Enclosures
cc: Washington Office
ref:VSA#571.3
d.11/4/05

ID: ES09-007169 213

ID: ES16-001603 Listou Trailer Response

ID: etnyre.ztv

Michael J. Hedeen, Esq.
Haldeman & Associates
308 West State Street, Suite 210
Rockford, IL 61101-1140

Dear Mr. Hedeen:

This is in reply to your letter of November 14, 2002, asking for clarification of the "early warning reporting" final rule (49 CFR Part 579, Subpart C) on behalf of your client, E.D. Etnyre & Company ("Etnyre").

You related that Etnyre has an agreement with an entity under which it provides partially-completed trailers, which are completed by the other entity who "rebadges the product [under its own name] for ultimate sale to its customers." In this fact situation, Etnyre is an incomplete vehicle manufacturer and not required to report comprehensive early warning information. It is required only to report claims and notices it receives on incidents involving death, as specified in Section 579.27.

Etnyre also has an agreement with another entity which supplies Etnyre with fully-manufactured trailers which it "rebadges as an E.D. Etnyre & Company product." Etnyre issues the warranties on these trailers and administers any warranty claims. You understand that Section 579.3(b) allows the fabricating manufacturer or brand name owner to report early warning information. You then asked

Where the fabricator reports on its wholly finished products and a brand name owner reports on the "rebadged" products, is the fabricator required to count the "rebadged" products under its production numbers and as part of its aggregate number of trailers manufactured for sale under Sec. 579.24?

With respect to vehicles badged with the Etnyre name but manufactured by another entity, that entity is the "manufacturer" who must report to NHTSA; however, Section 579.3(c) permits Etnyre to assume this obligation. If the brand name owner, Etnyre, does not assume the obligation to report, the fabricating manufacturer must count the rebadged trailers in the aggregate of its own production. If Etnyre chooses to report, the fabricating manufacturer should not include the Etnyre-badged trailers as part of its production. This choice should be made on a consistent basis, and not be revised from year to year or within a given year.

If you have any questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.4/11/03