ID: nht95-2.16

TYPE: INTERPRETATION-NHTSA

DATE: March 31, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Truman J. Lothen

TITLE: NONE

ATTACHMT: ATTACHED TO 2/6/95 LETTER FROM TRUMAN J. LOTHEN TO NHTSA (OCC 10754)

TEXT: Dear Mr. Lothen:

This responds to your letter of February 6, 1995, requesting information on requirements applicable to a "van seat/bed for aftermarket installation." Your questions and our response to each follows.

Does your department have safety standards that must (should) be designed into aftermarket vehicles seats?

The National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Federal law prohibits any person from manufacturing, intr oducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor ve hicle equipment, nor do we endorse any commercial products. Instead, each manufacturer is required to "self-certify" that its products meet all applicable safety standards.

There are five safety standards that are relevant to your inquiry: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, Standard No. 210, Seat Belt Assembly Anchorages, and Standard No. 3 02, Flammability of Interior Materials.

Standard No. 209 sets forth strength, elongation, webbing width, durability, and other requirements for seat belt assemblies. This standard applies to all seat belt assemblies for use in motor vehicles, regardless of whether the belts are installed as o riginal equipment in a motor vehicle or sold as replacements. Hence, any seat belts installed on the aftermarket seat have to be certified as complying with Standard No. 209.

The remaining four standards apply only to new vehicles. If the aftermarket seat were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, includ ing these four, with the aftermarket seat installed. Standard No. 207 establishes strength and other performance requirements for vehicle seats. Standard No. 208 sets forth requirements for occupant protection at the various seating positions in vehicl es. Standard No. 210 establishes strength and location requirements for seat belt anchorages. Finally, Standard No. 302 specifies burn resistance requirements for materials used in motor vehicles, specifically including seat cushions, seat backs, and s eat belts. While aftermarket seats, as items of equipment, are not required to meet these requirements, you may wish to use these standards as design guidelines.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in 49 U.S.C. 301 22(b). That section provides that:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle . . . . in compliance with an applicable motor vehicle safety standard.

Any violation of this "make inoperative" prohibition would subject the violator to a potential civil penalty of up to $ 1,000 for each violation. Please note that the "make inoperative" provision prohibits those entities from performing aftermarket modi fications that they know or should know will degrade the safety of the vehicle as it was before the modification.

Please note also that the "make inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where vehicle owners install your seat in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

Finally, as a manufacturer, you would be subject to federal requirements concerning the recall and remedy of products with defects related to motor vehicle safety (49 U.S.C. 30118-30121). I have enclosed a sheet for new manufacturers that discusses the basic requirements of our standards and regulations, including the provisions relating to manufacturers' responsibilities to ensure that their products are free of safety-related defects.

This seat would be provided with a lap seat belt and shoulder belt with one end attached to the seat frame and the other to the vehicle structure similar to what's currently used in automobiles. What safety design standards must be incorporated into thi s restraint system?

As explained above, the seat belt would have to comply with Standard No. 209. If you install seat belts manufactured by another company, that company should have certified compliance with that standard.

Would this seat require compliance testing to meet safety requirements?

As noted above, if these seats are installed in a vehicle prior to the vehicle's first sale for purposes other than resale, the vehicle must be certified as complying with all applicable safety standards with the seat installed. NHTSA's position on what steps manufacturers must take before certifying that their vehicles or equipment comply with applicable safety standards has been often stated and applies with equal force in your situation.

Our position is as follows. The compliance test procedures set forth in the safety standards must be followed by this agency during our compliance testing. With respect to your company's seats, this means that NHTSA's compliance testing for the vehicle would be conducted using the test procedures set forth in the relevant safety standard or standards. Manufacturers certifying compliance with the safety standards are not required to follow exactly the compliance test procedures set forth in the applica ble standard. In fact, manufacturers are not required to conduct any actual testing before certifying that their products comply with applicable safety standards. However, to avoid liability for civil penalties if the vehicle were determined not to com ply with a safety standard, the certifying manufacturer is required to exercise "reasonable care" to assure compliance and in making its certification. It may be simplest for the manufacturer to establish that it exercised "reasonable care" if the manuf acturer has conducted testing that strictly followed the compliance test procedures set forth in the standard. However, "reasonable care" might also be shown by using modified test procedures, engineering analyses, computer simulations, and the like. T hus, the entity that installs your seat in a vehicle prior to the vehicle's first sale will have to decide for itself, in the first instance, what information it needs to make its certification in the exercise of "reasonable care."

As noted above, if the seat were installed after the first purchase of the vehicle in good faith for purposes other than resale, any manufacturer, distributor, dealer, or repair shop that performed the installation would have to ensure that the installat ion did not "make inoperative" compliance with any applicable safety standard. Your company should carefully examine your product and the proposed installation instructions and compare those with the requirements of the safety standards, to determine if installing your product in accordance with your instructions would result in the vehicle no longer complying with the standards.

I hope you find this information helpful. I have enclosed information on how to get copies of those standards and regulations. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: nht95-2.17

TYPE: INTERPRETATION-NHTSA

DATE: April 3, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Randal K. Busick -- President, Vehicle Science Corporation

TITLE: NONE

ATTACHMT: ATTACHED TO 2/2/95 LETTER FROM RANDAL K. BUSICK TO MARY VERSAILLES (OCC 10694)

TEXT: Dear Mr. Busick:

This responds to your letter of February 2, 1995, asking three questions regarding the anchorage location requirements in Standard No. 210, Seat Belt Assembly Anchorages.

Your first question concerns S4.3 of Standard No. 210 which states, "(anchorages) for seat belt assemblies that meet the frontal crash protection requirements of S5.1 of Standard No. 208 . . . . are exempt from the location requirements of this section." You asked whether a manual 3-point belt installed at a seating position with an air bag is considered a seat belt assembly that meets the frontal crash protection requirements of S5.1. Assuming that the vehicle is certified to the requirements of Stand ard No. 208 using the air bag, the answer is yes.

Your second question asks what is meant by the phrases "belt bears upon the seat frame" and "does not bear upon the seat frame" in S4.3.1.1 and S4.3.1.2 of Standard No. 210. You stated that examples would be useful. NHTSA has previously said that the p hrase "bears upon the seat frame" "refers to seat belt assemblies in which the seat belt presses or rests directly on the main structural frame of the seat." n1 If a more specific answer is needed in the context of a specific design, please send us infor mation on the design in question.

n1 August 25, 1981, letter to Mr. Roger E. Maugh, Ford Motor Company. This letter, a copy of which is enclosed, discusses one example of a design which did not bear upon the seat frame.

Your third question asked whether the anchorage in a drawing which accompanied your letter complies with the location requirements in S4.3.1.1(a) of Standard No. 210. Section S4.3.1.1(a) states:

If the seat is a nonadjustable seat, then a line from the seating reference point to the nearest contact point of the belt with the anchorage shall extend forward from the anchorage at an angle with the horizontal of not less than 30 degrees and not more than 75 degrees.

As your letter correctly explains, prior to a recent amendment, this section in referring to "anchorage," referred to the "nearest contact point of the belt with the hardware attaching it to the anchorage." That amendment was a result of an amendment of the definition of "seat belt anchorage" to include hardware in the definition. Thus, the amendment was not intended to change the location of the "nearest contact point." In reviewing your drawing, the part labeled "belt and buckle assy." appears to be the belt for purposes of S4.3.1.1(a). While it is somewhat unclear in your drawing, it appears that the "nearest contact point" is either the part labeled "belt and buckle pivot/fixing" or the oval part around that part and adjacent to the part labeled "belt and buckle assy." In either case, the "line from the seating reference point to the nearest contact point" would be within the permissible range of angles.

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

ID: nht95-2.18

TYPE: INTERPRETATION-NHTSA

DATE: April 3, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: David T. Holland -- President, Europa International, Inc.

TITLE: NONE

ATTACHMT: ATTACHED TO 2/24/95 LETTER FROM DAVID T. HOLLAND TO MARY VERSAILLES

TEXT: Dear Mr. Holland:

This responds to your letter of February 24, 1995, regarding the passive restraint phase-in requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection. You asked whether an importer which "imports Canadian specificat ion MPV's (multipurpose passenger vehicles), such as the Chrysler Minivan, that meets (sic) the MPV passive restraint requirements of FMVSS 208 . . . . can count these vehicles toward the required percentage."

Section S4.2.5.6.1(a) states, "(a) vehicle that is imported shall be attributed to the importer." Thus, to determine compliance with the passive restraint phase-in requirements, Europa International should (1) count all trucks, buses, and mpv's with a gr oss vehicle weight rating of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less, (2) count all such vehicles which meet the passive restraint requirements of FMVSS 208, and (3) determine if that class of vehicles is a sufficient percentage of the first class of vehicles to satisfy the phase-in requirements. However, as Mary Versailles of my staff cautioned you on the phone, some manufacturers are installing European (face) air bags but are not certifying that vehicles with such air bags meet the passive restraint requirements of FMVSS 208. Therefore, you should verify that any vehicle with an air bag is in fact certified to FMVSS 208's passive restraint requirements.

I hope this information has been helpful. If you have other questions or need some additional information, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: nht95-2.19

TYPE: INTERPRETATION-NHTSA

DATE: April 5, 1995

FROM: C. Rufus Pennington, III -- Margol & Pennington, P.A.

TO: Mary Versailles -- Office of Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 6/6/95 LETTER FROM JOHN WOMACK TO C. RUFUS PENNINGTON, JR. (A43; STD. 108; PART 571.3)

TEXT: Dear Ms. Versailles:

On August 1, 1994, my 13 year-old nephew, Richard L. ("Bo") Wilson, III, was injured while an occupant in a rear seat of a 1979 Porsche 911 SC. The rear seat was not equipped with any type of seat belt. The vehicle was manufactured in July 1979 and was imported by Volkswagen of America, Inc in August 1979.

The approximate size and dimensions of the two rear seats are shown in the enclosed photographs and excerpts from the owner's manual. The maximum load capacity, as stated in the owner's manual, is 529 pounds (240 kg). A label in the engine compartme nt states that there are "two front" designated seating positions (although this information is not included in the owner's manual). The top or back portion of each of the rear seats folds down, in order to allow increased storage area in the rear.

By way of additional information, the 1980 model had an increased total load capacity of 661 pounds, but still had no seat belts in the rear seats. Then, in 1981, with a load capacity of 661 pounds and with no discernible change in the configuration of the seats, seat belts were added in the rear seats.

Based upon the foregoing information and the enclosed materials, I would appreciate NHTSA's answers to the following questions:

1. Did the manufacturer's designation of "two front" passenger seats eliminate any obligation on the part of the manufacturer to provide seat belts in the rear seats under Federal Motor Vehicle Safety Standard 208 (49 C.F.R. @ 471.208)?

2. Did the 1979 Porsche 911 SC comply with, or did it violate the requirements of Federal Motor Vehicle Safety Standard 208 (49 C.F.R. @ 471.208)?

Thank you very much for your assistance in this matter.

Enclosures - photo and specifications omitted.

ID: nht95-2.2

TYPE: INTERPRETATION-NHTSA

DATE: March 14, 1995

FROM: David A. White -- Manager of Reliability, Grumman Olson

TO: Administrator, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 4/14/95 LETTER FROM PHILIP RECHT TO DAVID A. WHITE (A43; PART 567)

TEXT: Dear Sir:

Grumman Olson requests an alternate location for the certification label required in 49 CFR 567.4 be approved for some of our vehicles. The vehicles involved are our Freight Star line which is a van body mounted on either a cut-a-way chassis or a chassi s cab. The Freight Star is installed on a wide variety of chassis with a wide variety of trim levels in the cab. We use a metal tag that is 3.5" X 6.0" which we need in order to put all the information we need in a readable size type. As chassis manuf acturers have made changes to their doors and interiors by downsizing, adding plastic trim and installation of their labels, Grumman Olson has found it increasingly difficult, if not impossible, to locate the certification tag in required locations. The refore Grumman Olson would request approval to locate the certification tag in a similar location specified for trailers, the left side, forward area of the cargo box. This location will allow a uniform location for the tag regardless of chassis model o r trim level. It is our understanding that some manufacturers of similar vehicles place their certification tags in this location and I assume they have already received approval to do so.

I would appreciate a prompt consideration of this request as it would relieve a significant problem we have in completing vehicles.

(PHOTO OMITTED.)

ID: nht95-2.20

TYPE: INTERPRETATION-NHTSA

DATE: April 6, 1995

FROM: Teresa Thompson -- Tony [Illegible Words]

TO: National Highway Traffic, Safety Council

TITLE: NONE

ATTACHMT: ATTACHED TO 5/11/95 LETTER FROM JOHN WOMACK TO TERESA THOMPSON (A43; STD. 108)

TEXT: Dear Chief Council,

I am writing to inquire about regulations which might apply to an automobile deceleration signal. My partner has invented a strobe light with an independent power supply, which upon heavy breaking, will activate a strobe for five seconds and on impact f or ten minutes.

The prototype for the light is approximately 4" by 3" and may be attached to a rear window with section cups or may be permanently installed with brackets. The light operates from a nine volt battery and the timers are activated by memory sensitive switc hes, [Illegible Word] with its own timing device according to the amount of torque applied in a given situation.

[Illegible Lines]

This device would be useful to all areas of the country where heavy fog occurs, heavy rain or areas which are mountainous in essence, the whole country.

We have tested the prototype as far as individually possible, but would like information on how to have this product tested and approved as well as information on the legal ramifications and liabilities for the product.

Your help in this matter, would be greatly appreciated.

ID: nht95-2.21

TYPE: INTERPRETATION-NHTSA

DATE: April 7, 1995

FROM: James M. Hanson -- Chairman Engineering Committee, Transportation Safety Equipment Institute

TO: Phillip R. Recht, Chief Counsel, NHTSA

TITLE: Subject: Request For Interpretation Of FMVSS-108 Paragraph S5.7

ATTACHMT: ATTACHED TO 4/26/95 LETTER FROM JOHN WOMACK TO JAMES M. HANSON (A43; STD. 108)

TEXT: The Transportation Safety Equipment Institute (TSEI) serves manufactures of OEM and aftermarket motor vehicle safety devices and associated equipment including retroreflective tape.

FMVSS-108 states in Table 1 that a trailer 80 inches or more in width shall have a conspicuity treatment meeting the requirements of paragraph S5.7. Paragraph S5.7 states "each trailer of 80 or more inches overall width, and with a GVWR over 10,000 poun ds, manufactured on or after December 1, 1993, . . . . shall be equipped with either retroreflective sheeting that meets . . . ." The word "and" in this paragraph could cause some trailer manufacturers to think that both conditions must be present before tape is required on the trailer. Some trailer manufacturers could interpret this to avoid applying tape in the following conditions:

1. A trailer of 80 inches or more in width weighing less than 10,000 pounds GVWR.

2. A trailer of less than 80 inches in width weighing more than 10,000 pounds GVWR.

TSEI believes that to assure maximum safety for the motoring public retroreflective tape should be applied to trailers that meet the following requirements:

a). A trailer of 80 inches or more in width and a GVWR of 10,000 pounds or more.

b). A trailer of 80 inches or more in width and a GVWR of less than 10,000 pounds.

c). A trailer of less than 80 inches in width and a GVWR of 10,000 pounds or more.

The TSEI would appreciate the NHTSA's interpretation and comments on this issue.

ID: nht95-2.22

TYPE: INTERPRETATION-NHTSA

DATE: April 8, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA; Signature by John Womack

TO: Malcolm Bricklin - President, The Electric Bicycle Company

TITLE: Re: Petition for Exemption

ATTACHMT: ATTACHED TO 3/20/95 LETTER FROM MALCOLM BRICKLIN TO RICARDO MARTINEZ

TEXT: Dear Mr. Bricklin:

We have received your letter of March 20, 1995, asking for an exemption from two provisions of Motor Vehicles Safety Standard No. 123 on the basis that "compliance with the standards, in this instance, will constitute a greater hazard to the general publ ic and will result in more accidents caused by operator error than the alternatives that we propose."

I am sorry to inform you that we cannot consider your request in its current form. For your guidance, I enclose a copy of our temporary exemption regulation, 49 CFR Part 555. I suggest that the appropriate basis for your petition under that regulation is section 555.6(d): that you are otherwise unable to sell a vehicle whose overall level of safety is the equivalent of, or exceeds, the overall level of safety of a nonexempted vehicle.

When you have filed a petition that provides the information required by Part 555, we shall be pleased to consider this matter further. Because of the need to afford the public an opportunity to comment, a decision is rarely reached until three to four months after a petition is received.

If you have any questions on the regulation, Taylor Vinson of this Office will be glad to answer them (202-366-5263; FAX: 202-366-3820).

ID: nht95-2.23

TYPE: INTERPRETATION-NHTSA

DATE: April 8, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Lee Rabie -- President, Enerco, Inc.

TITLE: NONE

ATTACHMT: ATTACHED TO 2/15/95 LETTER FROM LEE RABIE TO NHTSA (OCC 10732); ALSO ATTACHED TO 1/19/90 LETTER FROM STEPHEN P. WOOD TO LINDA L. CONRAD (STD. 208); ALSO ATTACHED TO 3/4/93 LETTER FROM JOHN WOMACK TO ROBERT A. ERNST

TEXT: Dear Mr. Rabie:

This responds to your letter of February 15, 1995, requesting information on any Federal regulations concerning recycling or remanufacturing vehicle air bags.

The National Highway Traffic Safety Administration (NHTSA) is authorized to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve moto r vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, each manufacturer is responsible for "self-certifying" that its products meet all applicable safety standards at the time of the product's first purchase for purp oses other than resale; i.e., the first retail sale of the product.

NHTSA has exercised its authority to establish Standard No. 208, Occupant Crash Protection (49 CFR @ 571.208). Standard No. 208 requires that many vehicles provide automatic crash protection. Vehicles equipped with automatic crash protection protect th eir occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test. One type of automatic crash protection currently offered on new vehicles is air bags. A recent amendment of Standard No. 208 makes air bags mandatory in all passenger cars and light trucks by the late 1990's.

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" t he performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dim ensions, actuation time, and the like.

Strictly speaking, manufacturers are not required to certify that air bags, as items of equipment, meet any motor vehicle safety standards. However, section S9 of Standard No. 208 specifies requirements for pressure vessels and explosive devices for use in air bag systems. Therefore, manufacturers of pressure vessels and explosive devices must certify that they comply with the requirements of S9 of Standard No. 208. In addition, you could not sell a recycled or remanufactured air bag with these compo nents replaced unless the new components were certified as meeting the requirements of S9.

It is unclear from your letter if the recycled or remanufactured air bags will be reinstalled in the original vehicle or if the air bags will be sold as replacement air bags for other vehicles with deployed air bags or as retrofit air bags for vehicles w hich do not have air bags as original equipment. Therefore, I will discuss these scenarios separately.

Re-installation or installation in a vehicle with a deployed air bag.

I am enclosing two letters that explain legal obligations to replace air bags which have been deployed. The first letter, dated January, 19, 1990, is to Ms. Linda L. Conrad. The second letter, dated March 4, 1993, is to Mr. Robert A. Ernst. As explain ed in those letters, Federal law does not require replacement of a deployed air bag in a used vehicle. In addition, there is no Federal law that prohibits selling a used vehicle with an air bag that is inoperable because of a previous deployment. Howev er, our agency strongly encourages dealers and repair businesses to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants. Moreover, a dealer or re pair business may be required by state law to replace a deployed air bag, or be liable for failure to do so.

Your letter asks the additional question of whether, if a deployed air bag is replaced, Federal law prohibits use of a recycled or remanufactured air bag as the replacement air bag. The answer to your question is no. As explained in the enclosed letter s, Federal law does not require a manufacturer, distributor, dealer, or repair business to return a vehicle to compliance with a standard if a device or element of design has been "made inoperative" by another agent, such as a crash. Thus, Federal law d oes not regulate the manner in which a deployed air bag is replaced. However, state law may regulate the manner in which a deployed air bag is replaced.

I would like to emphasize that in order for a replacement air bag to provide protection to vehicle occupants, it is essential that the replacement be properly completed. For example, the entire air bag must be replaced, including such things as the cras h sensors, the inflation mechanism, and other electronic parts. Moreover, since air bags are designed for specific vehicles, taking into consideration such factors as the seats, steering column crush stroke force resistance, gauge array and location on instrument panel, location and nature of knee bolsters, and compartment acceleration responses in frontal crashes, only air bags which are designed for the vehicle in question should be used. After the air bags are replaced, it is important that the air bag readiness indicator be in good working order to alert the occupants of any future malfunction of the air bag system.

Finally, you may wish to consult a private attorney concerning the state law implications of using recycled or remanufactured air bags for repairing automobiles, including possible tort liability.

Installation in a motor vehicle which did not originally have an air bag.

A Federal requirement that would affect a retrofit air bag is set forth in 49 U.S.C. 30122(b). That section provides that: A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle . . . . in compliance with an applicable motor vehicle safety standard.

The "make inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208 or any other safety standard.

Finally, as a manufacturer of replacement parts, you would be subject to federal requirements concerning the recall and remedy of products with defects related to motor vehicle safety (49 U.S.C. 30118-30121).

For your information, I have enclosed a sheet for new manufacturers that identifies the basic requirements of our standards and regulations, as well as how to get copies of those standards and regulations. I hope you find this information helpful. If y ou have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: nht95-2.24

TYPE: INTERPRETATION-NHTSA

DATE: April 10, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Glen Gramse -- Minnesota State Police

TITLE: NONE

TEXT: Dear Major Gramse:

It has been brought to our attention by Mr. R. C. Rost of Minnesota Body and Equipment that there is a question regarding Minnesota's law concerning buses used for Head Start programs. According to Mr. Rost, Minnesota prohibits these buses from being eq uipped with flashing lights and stop signal arms. He requested the National Highway Traffic Safety Administration (NHTSA) to clarify any inconsistencies between the Federal and State law.

As explained below, to the extent there is a conflict between Federal and State law, Federal law would prevail in this matter. All manufacturers and sellers of new school buses must comply with the Federal law by manufacturing and selling vehicles that are equipped with school bus lights and stop signal arms.

By way of background, Congress has directed this agency to issue Federal motor vehicle safety standards, which apply to the manufacture and sale of new motor vehicles. NHTSA has issued a number of FMVSSs for school buses, including ones requiring these buses to have warning lights and stop arms. The Federal law requires that each person selling a new bus (defined in our regulations as a vehicle designed for 11 or more persons) to a primary, preprimary, or secondary school must sell a bus that is certi fied to the FMVSSs for school buses. State law cannot change this requirement.

NHTSA's longstanding position is that Head Start programs are primarily educational in focus rather than custodial, and are therefore "schools" under NHTSA's statute. Accordingly, buses transporting students to and from Head Start facilities are defined as school buses under Federal law and are therefore subject to the Federal school bus safety standards. Any manufacturer that omits the warning lamp system required by paragraph S5.1.4 of Standard No. 108 or the stop signal arm required by paragraph S5 of Standard No. 131 (or that delivers a bus with these devices inoperative), is in violation of Federal law, and subject to recall provisions and civil penalties.

The effect of the statute's preemption provision is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that State standard or requirement is identica l to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light or stop arm requirements as a higher standard of perf ormance. Thus, regardless of how a State defines "School bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with warning lights or stop arms. Although each State has the authority to establish laws for the use of vehicles on its roads (including the equipment on the vehicles), those State laws may not override Federal laws for what type of safety equipment must be installed on new vehicles.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Walt Myers of my staff at this address or at (202) 366-2992.