ID: BlueBird2point.drn

Mr. Thomas D. Turner
Manager, Engineering Services
Blue Bird Body Company
P. O. Box 937
Fort Valley, GA 31030

Dear Mr. Turner:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School bus passenger seating and crash protection, and the "make inoperative" provision of our statute. I apologize for the delay in responding. You state that Blue Bird is investigating the feasibility, legality and practicability of equipping school bus passenger seats with Type 2 seat belt assemblies (lap and shoulder belt systems). You ask three questions about how our requirements may affect this endeavor.

Some background concerning school buses might be helpful in addressing your questions. In response to the Motor Vehicle and Schoolbus Safety Amendments of 1974, we issued Standard No. 222, which provides for school bus passenger crash protection through the "compartmentalization" concept. Compartmentalization is directed toward ensuring that passengers are surrounded by high-backed, well-padded seats that both cushion and contain the children in a crash. The seats must be strong enough to maintain their integrity in a crash yet be flexible enough to be capable of deflecting in a manner which absorbs the energy of the occupant. They must be constructed by use of substantial padding or other means, so that they provide protection when they are impacted by the head and legs of a passenger. On large school buses (gross vehicle weight greater than 4,536 kg (10,000 pounds)), compartmentalization provides effective occupant crash protection without the use of seat belts.

In the absence of a specific design proposal, we cannot offer an opinion as to whether a lap and shoulder belt system can be attached to existing school bus seats without reducing the benefits of compartmentalization during a crash. We also have limited information about how an integrated lap and shoulder belt system on a school bus seat would perform in a crash or otherwise affect the current safety of school buses. I have enclosed a copy of our October 28, 1999, letter to Mr. Gilbert A. Perea, which contains a more detailed discussion of our concerns about attaching a shoulder belt to a school bus seat back.

The National Highway Traffic Safety Administration (NHTSA) also has begun an extensive research program to study occupant protection systems for school bus passengers. One objective of the plan is to improve current school bus crash data to better define the types of crashes that produce injuries to occupants in order to evaluate the effectiveness of current Federal crash protection requirements.

The research plan also will evaluate new school bus occupant crash protection systems in controlled laboratory tests that represent real-world crashes. Based on those tests, NHTSA may propose new occupant protection requirements for school buses if overall safety can be improved.

Turning now to your questions, you first ask:

Question One: "As a manufacturer of school buses, is Blue Bird prohibited from installing Type 2 seat belts on the passenger seats in buses manufactured and sold as school buses based on the [make inoperative] provision cited above?"

You refer to 30122 of our statute (49 U.S.C. 30101 et seq.), which prohibits a motor vehicle manufacturer, dealer, distributor, or repair business from making modifications that "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 person in the aforementioned categories that makes inoperative the compliance of a device or element of design on a new or used vehicle would be subject to penalties of up to $1,100 per violation and injunctive relief.

In answer to your question, 30122 would prohibit Blue Bird from installing Type 2 belts if such a modification would cause a seating system already in compliance with Standard No. 222, or any other applicable FMVSS, to no longer comply. Note that 30122 only applies to a vehicle that has been previously certified as in compliance with the FMVSS, and that 30115 prohibits you as a manufacturer from certifying vehicles that do not comply with all applicable FMVSS. Similarly, 30112 prohibits the sale of noncomplying buses.

Neither Standard No. 222 nor our statute directly prohibits the installation of Type 2 belts for passengers in large school buses. If you can install these belts and preserve the school bus' compliance with all applicable FMVSSs, you may do so. As previously explained, however, we are concerned that the incorporation of shoulder belts into existing school bus seats could reduce crash protection.

Question Two: "Does the [make inoperative] provision prohibit the after-market installation of Type 2 seat belts and/or restraining bars or other devices attached to school bus seat backs and does the agency intend to actively enforce this provision?"

As stated above, the make inoperative provision does not prohibit the installation of belts or restraining bars per se, as long as the modified school bus can meet all applicable Federal safety standards. We do not believe, however, that Type 2 seat belts or restraining bars are generally compatible with existing school bus seats. We are currently investigating these and other occupant protection issues in our school bus safety research program. With respect to enforcement, we intend to actively pursue any violations of law that adversely affect the safety of children on school buses.

Question Three: "Would federal law preempt a state from requiring Type 2 seat belt assemblies on the passenger seats of new school buses they purchase."

Section 30103(b) of our statute states that when a Federal motor vehicle safety standard is in effect, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, that section provides that a State or a political subdivision of a State may prescribe a standard for vehicles or equipment obtained for its own use that imposes a higher performance requirement than that required by the Federal standard.

States would be preempted from requiring Type 2 belts on large school buses procured for the State's own use if the belts would cause the bus to not meet Federal school bus standards and thereby result in a lower level of safety performance than that required by the standards. Therefore, if installing Type 2 belts would either make a new school bus not able to meet Standard No. 222 or would "make inoperative" the compliance of a previously certified school bus with Standard No. 222, the State requirement would be preempted.⁽¹⁾

I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:222
d.7/12/00

1. We note that this letter does not affect our interpretation letter of February 20, 1987, to Mr. Martin V. Chauvin of the New York State Department of Transportation. In that letter, we stated that NHTSA's laws do not preempt a New York state law that requires passenger belts on N.Y. public school buses. In the context of the Chauvin letter, we were discussing lap belts only, and not Type 2 belts. The lap belts did not prevent school buses from meeting Federal motor vehicle safety standards.

ID: bmw102-1.pja

Mr. Karl-Heinz Ziwica
General Manger, Environmental Engineering
BMW of North America, Inc.
BMW Plaza
Montvale, NJ 07645-1866

Dear Mr. Ziwica:

This responds to your request for an interpretation of Standard No. 102, Transmission shift lever sequence, starter interlock, and transmission braking effect. Specifically, you ask whether a park control that is actuated by a separate control instead of by the movement of the transmission shift lever is part of the transmission shift lever sequence. You also ask whether such a park position must be located at the end, adjacent to reverse.

Paragraph S3.1.1 of Standard No 102, Location of transmission shift lever positions on passenger cars, states, in part " . . . If the transmission shift lever sequence includes a park position, it shall be located at the end, adjacent to the reverse drive position." [emphasis added.]

Paragraph S3.1.1 explicitly limits the requirement to those park positions included within the "shift lever sequence." It is our interpretation that if park is not selected by the movement of the shift lever, then the park control is not part of the shift lever sequence. In this case, the sentence quoted above does not apply, and the park control does not have to be located at the end, adjacent to reverse.

I hope this information is helpful. If you have any questions, please contact Paul Atelsek of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:102
d.9/25/98

ID: bombardier.ztv

Mr. William K. Cooper. P.E.
Vice President
Engineering and System Assurance
Bombardier Transportation (Holdings) USA Inc.
1501 Lebanon Church Road
Pittsburgh, PA 15236-1491

Dear Mr. Cooper:

This is in reply to your letter of January 13, 2003, requesting an interpretation as to whether the Guided Light Transit (GLT) that Bombardier is preparing to market is a "motor vehicle." You stated that the GLT "is similar in appearance and function to a European street tram, but runs on rubber tires and is guided during street operation by a single rail set into the roadway." You further stated "Propulsion is electric via an overhead catenary system." You argued that the GLT is not a "motor vehicle," "owing to its primary operation in a guided mode where the operator is not required to steer."

You provided additional information in a CD-ROM that you left with us after meeting with Taylor Vinson of this Office, and other agency representatives, on December 10, 2002. We have downloaded this information and it, with your letter, forms the basis for our response.

The information indicates that the rubber-tired GLT is intended to bridge the gap between articulated buses and steel-wheeled trams. The GLT is a vehicle consisting of three passenger-carrying units, and contains 41 designated seating positions. The overall length of the GLT is 24.5 m and its "empty weight" is 25,000 kgs. In the GLTs "Maintenance/Failure Management Mode," the operator "provides steering, traction and braking for limited failure management and non-revenue service maneuvers." We understood from our meeting that "non-revenue service maneuvers" refers to the driving of the GLT, under its own power, between the guide rail and the structure where it is housed. In going to and from the guide rail, the GLT does not carry passengers.

You have also presented information indicating that the GLT complies, or will comply, with all but one of the Federal motor vehicle safety standards (FMVSS) that would apply to it as a "bus" with a GVWR more than 4,536 kg. were the GLT determined to be a "motor vehicle."The one exception is FMVSS No. 208, Occupant Crash Protection, where "Discussion required with the National Highway Traffic Safety Administration (NHTSA") is noted (in our view, the GLT would comply with FMVSS No. 208 were the operator provided with, at a minimum, a Type 1 seat belt assembly (a lap belt for pelvic restraint) that complies with the specifications of S4.4.2.2 of FMVSS No. 208, referenced by the primary requirement for a bus with a GVWR of more than 10,000 pounds, S4.4.3.1.).

Under 49 U.S.C. Chapter 301 Motor Vehicle Safety, a "motor vehicle" is "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line." Under a literal application of this definition, the GLT would be a "motor vehicle" because it is manufactured primarily for use on the public streets and it is not operated exclusively on a rail line.

Nevertheless, we interpret the definition to exclude vehicles operated on a rail line even if the vehicles are rubber-tired, instead of steel-wheeled, and if the rail line is part of a public road. Importantly, we observe that the GLT is "operated exclusively on a rail line" at all times that it is carrying passengers other than a driver; i.e., when the safety of the passengers on the public roadways would be the paramount concern of this agency. At such times, it is electrically powered by an overhead catenary, consistent with other public transit vehicles such as trams and trolleys that are operated exclusively on rails. We further note that the GLT exceeds in length articulated (two-unit) buses typically regulated by this agency and due to its GVWR, is excused from compliance with some FMVSS that apply to buses. Therefore, we have concluded that the GLT is not a "motor vehicle."

Even if we decided that the GLT were a motor vehicle, there would be public policy reasons as well for NHTSA not to regulate it. Bombardiers submission also indicates that the GLT complies or will comply with such safety regulations of the Federal Transit Administration (FTA) as may apply to it (49 CFR Part 665). We have, on two occasions, relinquished our jurisdiction over "motor vehicles" where it appeared they were more appropriately regulated by another Federal agency. Initially, we considered mobile homes to be "motor vehicles" because they used the public roads in traveling from the place of manufacture to one or more home sites during their life, requiring them to be equipped in compliance with the Federal motor vehicle safety standards that applied to "trailers." We found it more appropriate for mobile homes to be regulated by the Department of Housing and Urban Development (HUD). The second situation involved motorized bicycles. We distinguished those that were powered 100 percent of the time by a motor from those where the power source was primarily muscular and the motor operated intermittently as an assist, such as in climbing hills. We found it more appropriate that the Consumer Product Safety Commission (CPSC) regulate power-assist bicycles. Because the GLT is not a transit vehicle of the type usually regulated by this agency, it is more appropriate for FTA to regulate it than it would be for NHTSA to do so.

If you have any questions, you may call Taylor Vinson (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.5/15/03

ID: bonanno.nhf

Mr. Ben M. Bonanno
1666 Gilbert Drive
Mayfield Heights, OH 44124

Dear Mr. Bonanno:

This responds to your letter requesting that the agency permit a repair business to modify your motor vehicle. I apologize for the delay in my response. You explain that you have a congenital bone disorder and are of short stature. You explain that you need to raise the driver's seat in your Buick Custom LeSabre to accommodate your condition.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) will not institute enforcement proceedings against a commercial entity that modifies the seat to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of a vehicle, 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. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the seat to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to raise the seat. The manufacturer should be able to provide information on how the modification can be safely performed. In addition, if the vehicle is sold, we urge you to advise the purchaser that the vehicle has been modified and consider lowering the seat if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:207#VSA
d.2/9/99

ID: bottling_trailer5853v2

Sandra Swanson, Branch Manager
PBB Global Logistics
400 Oyster Point Blvd. #539
S. San Francisco, CA 94080




Dear Mr. Swanson:

This responds to your letter in which you ask if a trailer your client is considering to import into the United States is a "motor vehicle" as defined in our standards. As explained below, our answer is yes.

In your letter, you state that the trailer is not equipped with an engine and is not primarily for "road use". You state that the trailer is equipped with bottling equipment and would be transported to wineries to assist in the bottling of wine. You also state that in the vehicles country of origin (France), it was licensed as a semitrailer and not considered a motor vehicle.

Chapter 301 of Title 49 of the U.S. Code authorizes the National Highway Traffic Safety Administration to establish Federal motor vehicle safety standards applicable to new motor vehicles. Section 30102(a)(6) of that chapter defines "motor vehicle" as:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

We have issued a number of letters addressing this language. We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of

highway travel. Also, vehicles are not motor vehicles if they were designed to be used primarily at off-road job sites and, although capable of being operated on public roads from one job site to another, their on-road use is infrequent and incidental to the primary purpose for which they were manufactured (e.g., mobile cranes).

In our previous determinations that vehicles were designed primarily for use off-road, the work-oriented equipment was integral to the design of the vehicle, i.e., the mobility-oriented characteristics of the vehicle reflected the off-road use of the vehicle. For example, in a recent letter to Ms. Melissa A. Burt (March 21, 2005), we noted that the vehicle in question had a lower speed differential than that commonly found on vehicles manufactured for use on public roads, which permitted slow, consistent operating speeds necessary for its off-road use. Further, that vehicles engine was equipped with a front or rear end power takeoff that can run the mixers machinery in the farmers field. The vehicle discussed in the Burt letter was determined not be a motor vehicle as its characteristics, without respect to the work-oriented equipment, demonstrated that the vehicle was not manufactured primarily for use on public roads.

You state that the trailer your client is seeking to import contains bottling equipment, which is intended to be used off-road, i.e., at wineries. However, at issue is the vehicle and not the equipment transported by the vehicle. The characteristics of the trailer you described in your letter, aside from the bottling equipment housed in the trailer, are indistinguishable from trailers manufactured primarily for use on public roads. In your letter, you further state that the vehicle is classified as a "semitrailer" in its country of origin. We note that the definition of "motor vehicle" extends to vehicles that do not have engines, i.e., those that are drawn by mechanical power. "Semitrailer" is specifically defined as a class of motor vehicles in 49 CFR 571.3.

Based on the above discussion we would classify the vehicle your client is seeking to import as a "motor vehicle".If you have any further questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Assistant Chief Counsel
for Vehicle Safety Standards and Harmonization

ref:571
d.8/10/05

ID: boucher.ztv

Ms. Kimberly Boucher
Compliance Administrator
Spartan Motors Chassis, Inc.
1165 Reynolds Road
Charlotte, MI 48813

Dear Ms. Boucher:

This is in reply to your e-mail of October 10, 2002, to Taylor Vinson of this Office. You related that Spartan Motors is an incomplete vehicle manufacturer, whose annual production of incomplete vehicles (fire truck cab/chassis and RV chassis) exceeds 500 annually. You are unclear as to whether Spartan has "full reporting responsibilities or just injuries/deaths due to the fact that we are not the final manufacturer."

The reporting responsibilities of incomplete vehicle manufacturers were not specifically addressed in the preamble or regulatory text of the final rule. However, we do not view incomplete vehicle manufacturers as manufacturers of "motor vehicles" for purposes of the early warning reporting final rule. To be sure, our regulations provide that when a vehicle is manufactured in two or more stages, a defect or noncompliance report (and quarterly reports) may be filed by either the manufacturer of the incomplete vehicle or any subsequent manufacturer of the vehicle (49 CFR 573.3(c)). However, pre-decisional information that may lead to defect or noncompliance determinations, as contemplated by the TREAD Act, is much more likely to be received by the manufacturer who completes the vehicle (and certifies its compliance with all applicable Federal motor vehicle safety standards) than by the incomplete vehicle manufacturer. It is our opinion that most relevant claims, notices, and reports regarding completed vehicles would go in the first instance to the manufacturer completing the vehicle, and not to the incomplete vehicle manufacturer. Therefore, incomplete vehicle manufacturers such as Spartan do not have "full reporting responsibilities" under the early warning reporting rule.

Spartan does have limited reporting responsibilities under 49 CFR 579.27. Our regulation covering vehicles manufactured in two or more stages (49 CFR Part 568) defines "incomplete motor vehicle" (49 CFR 568.3) as an "assemblage" of various vehicle components that require further manufacturing operations to become a completed vehicle. This assemblage comprises "original equipment," and if Spartan receives a claim against it regarding an incident involving death, or receives a notice alleging or proving that a death was caused by a possible defect in an incomplete vehicle of its manufacture, it must report according to the requirements of 49 CFR 579.27.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.4/11/03

ID: brandt3

The Honorable Andrea Seastrand
California State Assemblywoman
33d District
523 Higuera Street
San Luis Obispo, CA 93401

Dear Ms. Seastrand:

Thank you for your letter forwarding the concerns of Mr. Eric Brandt regarding the use of aircraft tires on the dollies that he uses to move houses and other structures on the highway. I am pleased to have this opportunity to respond.

Your office's description of Mr. Brandt's concerns was as follows:

He is upset because the California Highway Patrol has stopped him from his house moving business because he is using aircraft tires on the dollies he uses to move the houses. He thinks that the law is being interpreted incorrectly. He is using low profile tires, and he thinks the law means the high floatation tires. The California Highway Patrol officer told Mr. Brandt to contact the Federal Department of Motor Vehicles and find out. In the meantime, he is out of business. Can we help?

In accordance with your request, we have prepared a response directly to Mr. Brandt (copy enclosed).

If I can be of further assistance, please contact me or Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure ref:119 d:12/6/94

ID: Braun

The Braun Corporation
631 W. 11^th St.
PO Box 310
Winamac, IN 46996

Dear Braun Corporation:

This responds to your letter concerning the applicability of Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform lifts installed for motor vehicles, and No. 404, Platform lift installations in motor vehicles, to lifts manufactured before the effective date. I have addressed your concerns below.

In a December 27, 2002, final rule, the agency established FMVSS Nos. 403 and 404 in order 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 (67 FR 79416; amended 69 FR 58843, October 1, 2004). FMVSS No. 403 is an equipment standard that specifies minimum performance requirements for platform lifts designed for installation on motor vehicles. FMVSS No. 404 requires that certain vehicles that are manufactured with platform lifts comply with a set of minimum requirements. The effective date of these standards has recently been delayed until April 1, 2005 for FMVSS No. 403 and July 1, 2005 for FMVSS No. 404 (69 FR 76865; December 23, 2004).

In your letter, you expressed concern that individuals would not be able to have a lift that was manufactured prior to the effective date installed on a vehicle that was manufactured on or after the effective date. You explained that it is a common practice for lift users to transfer a lift from one vehicle to another. You expressed concern that FMVSS Nos. 403 and 404 will prohibit a lift user from having a lift transferred to a vehicle that was manufactured after the effective date of FMVSS No. 404.

Generally, FMVSSs apply to motor vehicles and motor vehicle equipment up to their first retail sale. See 49 U.S.C. 30112. Manufacturers are required to certify that their products conform to all applicable FMVSSs before the products can be offered for sale. After the first retail sale of a vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "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.

The "make inoperative" provision only applies to standards with which a vehicle is certified as complying. If a vehicle with a manufacture date of July 1, 2005, or later is manufactured with a lift, that vehicle must comply with FMVSS No. 404. However, if after first retail sale a platform lift is added to a vehicle manufactured either before or after July 1, 2005, that was not equipped with a lift at first retail sale, there is no duty for a modifier to bring that vehicle into compliance with FMVSS No. 404; i.e. , there is no requirement to equip the modified vehicle with a lift that complies with FMVSS No. 403. Therefore, in such instances, a lift user would be able to have a non-compliant lift taken from an older vehicle and installed on a vehicle that he or she had previously purchased.

I hope you find this information helpful. If you have any additional questions please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:403#404
d.1/3/04

ID: Braun_0001630v2

Barry E. Wolff, Director of Risk Management
The Braun Corporation
631 West 11^th Street
P.O. Box 310
Winamac, IN 46996

Dear Mr. Wolff:

This responds to your request for the agency to refrain from taking enforcement action on account of vehicle alterations your company intends to make. You stated that certain alterations to accommodate individuals with disabilities would result in a non-compliance under Federal Motor Vehicle Safety Standard (FMVSS) No. 225, Child restraint anchorage systems. As explained below, we have decided against providing the requested relief.

Under the Federal motor vehicle certification requirements, a business that modifies fully certified vehicles prior to first sale for purposes other than resale is classified as an alterer (49 CFR 567.7, Requirements for persons who alter certified vehicles). An alterer must identify all of the safety standards affected by an alteration and certify that, as altered, each vehicle conforms to all applicable Federal motor vehicle safety standards affected.

In your letter you explained that Braun, as a vehicle alterer, converts new, fully certified motor vehicles to accommodate wheelchairs and then sells the newly-certified motor vehicles. You explained that a minivan conversion to provide for wheelchair access typically eliminates the second row of seating, including the compliant child restraint anchorage systems (LATCH systems) installed in that row. Under FMVSS No. 225, vehicles with three or more forward-facing rear designated seating positions must have in the rear seating positions a minimum of two LATCH systems and an additional tether anchorage. To bring the vehicle back into compliance with FMVSS No. 225, you stated that two LATCH systems are added to what was originally the third row of seating.

As explained by your letter and in a subsequent telephone conversation with Mr. Chris Calamita of my staff, one version of the model year 2005 Chrysler minivan is presenting a problem. This is because the new "Stow and Go" seat installed in the third row of the more expensive version of the minivan utilizes a 60/40 split bench seat design. The larger portion of the seat is already equipped with a compliant LATCH system. However, according to your letter, the smaller portion of this split bench seat is too narrow to permit installation of an aftermarket LATCH system that meets the requirements of FMVSS No. 225. Thus, Braun would be unable to certify compliance with FMVSS No. 225 using the existing "Stow and Go" seat. Additionally, simply replacing that seat with another seat is difficult because the "Stow and Go" seat folds into the floor pan of the vehicle.

NHTSA has established a limited exemption from the Federal motor vehicle safety standards in order to accommodate individuals with disabilities (49 CFR 595 Subpart C, Vehicle Modifications To Accommodate People With Disabilities). The exemption is only available to motor vehicle repair businesses making certain vehicle modifications after first sale for purposes other than resale (first retail sale). Under limited circumstances, a vehicle manufacturer, including an alterer, can qualify for the exemption as a motor vehicle repair business. However, it appears from your letter that this exemption would not be available to Braun as the vehicle modifications your company makes are completed prior to first retail sale. Accordingly, we are unable to provide the relief you request regarding this vehicle.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:225
d.6/18/04

ID: BressantEPAltr

Mr. Kerrin Bressant
United States Environmental Protection Agency
1300 Pennsylvania Avenue, NW
Washington, DC 20460





Dear Mr. Bressant:

This is in reply to your fax to Stephen R. Kratzke, the National Highway Traffic Safety Administration's (NHTSA's) Associate Administrator for Safety Performance Standards, providing descriptions of three small vehicles--the Kawasaki Mule 520, the Polaris Ranger 4 x 4, and the Cushman White Truck 611. You asked whether these vehicles meet our definition of a "low-speed vehicle" even though they were designed or are advertised as "off-road" only use vehicles, and whether a vehicle can be considered both an off-road vehicle and a low-speed vehicle at the same time. Your questions are addressed below.

By way of background information, the National Traffic and Motor Vehicle Safety Act (Safety Act) authorizes our agency to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. (49 U.S.C. 30101 et seq.) NHTSA has no authority to approve or certify any commercial product. Instead, Congress established a self-certification process under which each manufacturer is required to certify that each of its products meets all applicable Federal Motor Vehicle Safety Standards.

The term "motor vehicle" is defined by statute as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways . . ." 49 U.S.C. 30102(a)(6). Accordingly, only vehicles that are operated on the public streets, roads, and highways, as one of their primary uses, are considered to be motor vehicles, and vehicles which are solely used "off-road" are excluded.

For purposes of our regulations, "low-speed vehicles" are one of several categories of motor vehicles. The term "low-speed vehicle" is defined as "a 4-wheeled motor vehicle, other than a truck, whose speed attainable in 1.6 [kilometers] (1 mile) is more than 32 kilometers per hour (20 miles per hour) and not more than 40 kilometers per hour (25 miles per hour) on a paved level surface." 49 CFR 571.3(b) (emphasis added). Other categories of motor vehicles include passenger cars, multipurpose passenger vehicles, trucks, buses, motorcycles, and trailers.

As to your question of whether a vehicle can be considered both an off-road vehicle and a low-speed vehicle at the same time, I note that because low-speed vehicles are a type of motor vehicle, vehicles that are excluded from the definition of motor vehicle because they are solely used "off-road" are not considered to be low-speed vehicles under our regulations.

Some vehicles can, of course, be used for either on-road use or off-road use. As we have explained in a number of interpretation letters, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is equipped with special features to permit off-road operation. Moreover, if a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, NHTSA has interpreted the vehicle to be a "motor vehicle." Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated.

In instances where the agency is asked whether a vehicle is a motor vehicle when it has both off-road and on-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, the agency has applied five factors in offering its advice. These factors are:

1. whether the vehicle will be advertised for use on-road as well as off-road, or whether it will be advertised exclusively for off-road use;
2. whether the vehicle's manufacturer or dealers will assist the vehicle's purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use;
3. whether the vehicle will be sold by dealers also selling vehicles that are classified as motor vehicles;
4. whether the vehicle has affixed to it a warning label stating that the vehicle is not intended for use on the public roads; and
5. whether states or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

I will now turn to the specific vehicles about which you inquire, the Kawasaki Mule 520, the Polaris Ranger 4 x 4, and the Cushman White Truck 611.

Because the Safety Act establishes a self-certification system, it is the manufacturer of each of these vehicles, and not this agency, that has the obligation to determine whether these products are motor vehicles. The manufacturers of each of these vehicles advertise them for off-road use and do not consider them to be motor vehicles.

NHTSA has issued interpretation letters addressing an earlier design of the Polaris Ranger and addressing vehicles which are similar to the other vehicles. I am enclosing copies of several of these letters for your information (addressed to Mr. Undlin, dated 8/6/99, Mr. Sanford, dated 1/25/99, Mr. Garcia, dated 1/17/95, and Mr. Kato, dated 10/13/88).

Finally, I would like to note that our definition of "low-speed vehicle" specifically excludes trucks. The vehicles you asked about all have cargo beds. If a manufacturer decided to produce vehicles similar to these for on-road use, they would not be low-speed vehicles under our regulations (regardless of their speed capability); they would be trucks.

I hope this information is helpful. If you have any questions, you may contact Robert Knop of this Office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:571
d.3/7/02