ID: 17692.wkm

Mr. John White
John White Company
770 Washington Street
Largo, IN 46941

Dear Mr. White:

This responds to your letter of March 30, 1998, to Walter Myers of my staff and Mr. Myers' telephone conversation of April 7, 1998, with your foreman, Jerry. You stated that your company builds and repairs hopper bottom trailers used for hauling grain. You equip your trailers with used undercarriages, including axles, brakes, and suspensions, which you mount on new frames and beds. You asked whether your trailers are required to comply with the antilock brake system requirements of Federal Motor Vehicle Safety Standard No. 121, Air brake systems. The answer depends on the particular facts of your operation.

The agency's regulation with regard to combining new and used components in assembling trailers is found at 49 Code of Federal Regulations (CFR) 571.7(f), Combining new and used components in trailer manufacture (copy enclosed), which provides in pertinent part:

When new materials are used in the assembly of a trailer, the trailer will be considered newly manufactured . . . unless, at a minimum, the trailer running gear assembly (axle(s), wheels, braking and suspension) are not new, and was taken from an existing trailer -

(1) Whose identity is continued in the reassembled vehicle with respect to the Vehicle Identification Number; and

(2) That is owned or leased by the user of the reassembled vehicle.

By its terms, therefore, subsection 571.7(f) applies to situations in which new components are combined with used components in the assembly of a trailer. Specifically, the trailer will be considered new unless, at a minimum, the axle(s), wheels, brakes, and suspension are not only not new, but must have been taken from an existing trailer. Moreover, the vehicle identification number of the existing trailer must be continued in the reassembled trailer and both must have been owned or leased by the user of the reassembled trailer. Unless all these conditions are met, the trailer is considered new and must be certified to all applicable standards, including the ABS requirements of Standard No. 121, in accordance with 49 CFR Part 567 (copy enclosed).

For your additional information, I am enclosing fact sheets entitled Federal Requirements for Manufacturers of Trailers and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:121#571
d.6/12/98

ID: 17693.drn

Mrs. June Becklin
397 Jesse James Lane
Mahtomedi, MN 55115

Dear Mrs. Becklin:

This responds to your request for an interpretation whether dealers may sell new multipurpose passenger vehicles (MPVs) or passenger cars that they know will be used to transport school children. As explained below, the National Highway Traffic Safety Administration (NHTSA) does not prohibit a dealer from selling a new MPV or car for such a purpose.

By way of background, NHTSA is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles, including school buses. Any person selling a new vehicle must sell a vehicle that meets all applicable standards. Under our regulations, a "bus" is a vehicle that has a seating capacity of 11 persons or more. A "school bus" is a "bus" that is sold for purposes that include carrying school children to or from school or related events (49 C.F.R. 571.3). Because any new "bus" that is sold for pupil transportation purposes is a "school bus," the school bus standards apply, and any person selling such a vehicle must ensure that the vehicle is certified as meeting our school bus standards.

We do not require, however, that only school buses can be sold for pupil transportation. Under our regulations, a van that seats fewer than 11 persons is an "MPV," which is defined in 571.3 as a motor vehicle "designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation." A passenger car is a motor vehicle "except a multipurpose passenger vehicle, motorcycle, or trailer, designed for carrying 10 persons or less" (49 CFR 571.3). An MPV or passenger car is a different type of vehicle than a bus or a school bus, and must meet safety standards that apply to their vehicle type. Dealers selling new MPVs and passenger cars must be sure to sell vehicles that have been certified to the applicable standards.

We do not have a policy either for or against the use of MPVs and cars for school transportation. These vehicles must meet safety standards that provide high levels of crash protection. NHTSA has issued Highway Safety Program Guideline No. 17, "Pupil Transportation Safety" (copy enclosed), that establishes minimum recommendations for State pupil transportation safety programs. To the extent that the guideline distinguishes between vehicles, it does so by distinguishing school buses from non-school buses. For instance, among the recommendations is

Paragraph IV.B.1.h., in which NHTSA recommends that all buses regularly used for pupil transportation should "[c]omply with all FMVSS applicable to school buses at the time of their manufacture." That is, if a bus is regularly used to transport pupils, it should be a school bus. The provision does not apply to MPVs and passenger cars.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA102(14)#Part 571.3, "multipurpose passenger vehicle"# Part 571.3 "school bus only"
d.7/6/98

ID: 17696.drn

Gary Miller, Vice President
Chillicothe Ford Lincoln Mercury
521 South Washington
Chillicothe, MO 64601

Dear Mr. Miller:

This responds to your request for an interpretation regarding the removal of seats from a new 15-passenger Ford E350 Club Wagon, for possible sale to a school. You ask whether the van must meet Federal school bus standards if seats are removed, reducing seating positions to fewer than 10. Our answer is that if the seats were permanently removed prior to the vehicle's sale, the van would not be a "school bus" subject to our school bus standards. However, the vehicle would be considered to be a multipurpose passenger vehicle (MPV) and subject to standards for MPVs.

Your letter states that a "School of Vocational Education" in your area would like the Club Wagon. In a telephone conversation with Dorothy Nakama of my staff, you explained that high school aged students attend the School of Vocational Education ("the School"), and get credit towards high school diplomas for attending the School.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles, including school buses. In 1974, Congress enacted legislation directing NHTSA to issue safety standards on specific aspects of school bus safety.

Our statute at 49 U.S.C.30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Under our regulations, a "bus" is any vehicle, including a van that has a seating capacity of 11 persons or more. Our statute defines a "school bus" as any bus which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. Therefore, a 15-passenger van that is likely to be used significantly to transport students is a "school bus."

Because the School of Vocational Education instructs high school students, NHTSA considers it a "school." If a new 15-passenger Club Wagon is sold or leased to transport students of the School (e.g., leased on a regular or long term basis), the vehicle must meet NHTSA's school bus standards. Conventional 15-passenger vans do not have the safety features necessary for them to be certified as school buses. Therefore, a conventional Club Wagon thus cannot be sold or leased, as a new vehicle, to the School for pupil transportation.

As for removing seats from the van, in an interpretation letter of April 2, 1996 to the Michigan State Police (copy enclosed), NHTSA addressed the issue of dealers reducing seating capacity on a bus to fewer than 11 positions. NHTSA stated the following (see page 3):

If a dealer permanently reduces the seating capacity of a bus to less than 11, the modified vehicle is no longer a "bus." Because the dealer would not be selling a bus, the requirement to sell a school bus does not apply. However, a dealer modifying a new vehicle in this manner would have other responsibilities as a vehicle "alterer" under our regulations (49 CFR 567.7). The dealer would be changing the vehicle's classification to that of a multipurpose passenger vehicle (MPV), and would have to certify that the vehicle complies to the MPV standards.

The letter also addresses several hypothetical situations where dealers lease or sell passenger vans with 5, 8 or 12 seating positions to schools.

You also wish to know whether the van has to meet school bus standards if seating capacity were reduced to 10 or fewer and you obtained a letter from the School stating that it will never transport more than 10 people. As explained above, with seating capacity reduced to less than 11 persons, the vehicle would be subject to the MPV standards. In any event, you appear to be asking whether a school's assurances that it will not carry more than 10 persons in a vehicle enables you to sell non-school buses to the school. The answer is no. A vehicle is a bus depending on whether it is designed for carrying more than 10 persons. The number of persons actually carried in the vehicle has no effect on its classification. Thus, a letter from the school will have no effect on your responsibilities, described in the April 1996 letter, to sell complying vehicles.

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:VSA#571.3"school bus only"
d.7/28/98

ID: 17697.ztv

Tadashi Suzuki, Manager
Automotive Equipment
Legal & Homologation Sect.
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153,
Japan

Dear Mr. Suzuki:

This is in response to your letter of April 2, 1998, asking for confirmation of the acceptability under Standard No. 108 of Stanley's new visual/optical headlamp system.

The system is based upon an existing system aimed by VHADs. In the new system, the VHAD for vertical aim has been removed. The horizontal aiming mechanism is "deleted by removing the horizontal VHAD and by fixing a cover on the head of the aiming bolt so that the access is impossible." The requisite marks are on the lenses identifying it as a visually/optically aimable headlamp..

You note the remarks in the preamble to the final rule on visually/optically aimable headlamps that "any current headlamp design that is modified to include visual/optical aimability must still provide mechanical aimability if that headlamp is intended to be a replacement in vehicles in which the lamp was used before its redesign." You inform us that this headlamp is intended for a new model year vehicle and that the existing type of headlamp will be provided for the replacement of the present model year of vehicle. The two headlamps will have different parts numbers and lens identifiers. Under these circumstances, you have asked for an interpretation that the new system need not continue to provide mechanical aimability.

It is not advisable for headlamps on the same vehicle to have be aimed by two different means. However, in this situation, where the two headlamps have different parts numbers and lens identifiers, we have concluded that Stanley is justified in concluding that the visually/optically aimable headlamp is not a replacement for the headlamp that is mechanically aimable, and therefore need not retain the mechanical aiming feature on the newer headlamp. We believe that Stanley's intent would be even clearer if the cartons in which each type of replacement headlamp is shipped are marked to identify the specific model year(s) for which replacement is intended.

Sincerely,
Frank Seales, Jr.
Chief Counsel
NCC-20 ZTVinson:mar:5/30/98:62992:OCC 17697
interp. 108; redbook (2)
NCC-20 ZTVinson:mar:5/21/98:62992:OCC 17697
cc: NCC-01 Subj/Chron
ztv; 17697; U:\ncc20\interp\108\17697.ztv

ID: 1769y

Mabel Y. Bullock, Esq.
Assistant Attorney General
State of North Carolina
Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629

Dear Ms. Bullock:

Thank you for your letter to Ms. Susan Schruth of my staff, regarding North Carolina General Statute 20-127, Windshields must be unobstructed. I regret the delay in responding. You enclosed a copy of the statute, the regulations implementing it, a copy of a December 18, l987 legal memorandum prepared by your department concluding that a State statute or regulation allowing 35% light transmittance through windows in motor vehicles would be preempted by current Federal safety laws and standards regulating this same subject matter, and a copy of a May 6, 1988 letter from the Motor and Equipment Manufacturers Association (MEMA) to Mr. William S. Hiatt, the Commissioner of Motor Vehicles for North Carolina, asserting that the North Carolina statute was not preempted by Federal laws and regulations. You asked for my opinion as to whether the North Carolina statute conflicts with any provision of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. /1381 et seq.) or with the Federal Motor Vehicle Safety Standards (49 CFR 571.1 et seq.).

Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, Glazing Materials (49 CFR /571.205), which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." Because of this statutory requirement, any manufacturer, importer, or dealer that installs solar films or other sun screen devices on new glazing materials or the glazing installed in new vehicles must certify that the vehicle continues to comply with the light transmittance and other requirements of Standard No. 205.

The requirement that a car comply with all applicable safety standards applies only until the car is first sold to a consumer. See section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)). Both before and after a vehicle is first sold to a consumer, any modifications to the vehicle's windows, including tinting, are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with any safety standard. In the case of windows in a passenger car, this means that no manufacturer, dealer, distributor, or repair business could install a sun screen device or window tinting that would result in a light transmittance of less than 70 percent for any window of the car, or otherwise cause the car to no longer comply with the other requirements of Standard No. 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $1000 for each noncomplying installation.

Please note that Federal law does not affect vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles.

The authority of States to regulate glazing is affected by section 103(d) of the Safety Act (15 U.S.C. /1392(d)). This section provides that:

[w]henever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.

The effect of this provision of the Safety Act, with respect to the light transmittance requirements of Standard No. 205, is to expressly prohibit any State from specifying some level of light transmittance other than the 70 percent specified in Standard No. 205 for new motor vehicles and new glazing for use in motor vehicles. Each of the individual States has authority to enforce identical standards (i.e., a minimum of 70 percent light transmittance) for new motor vehicles and new glazing for use in motor vehicles. Additionally, each of the individual States has the authority to regulate the modifications that may be made to vehicles by their owners and to establish requirements for vehicles to be registered in that State.

Having provided this background, we want to turn now to the results of our review of the North Carolina statute and regulations, along with your office's memorandum concluding that the statute is preempted by Federal law.

1. New vehicles and new glazing for use in vehicles. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted if it specifies any requirements other than the requirements of Standard No. 205 (minimum of 70 percent light transmittance) for new vehicles or for new glazing for use in motor vehicles. Section 108(a)(1) of the Safety Act and Standard No. 205 require all new vehicles and new glazing for use in motor vehicles to be delivered to the first purchaser with a light transmittance of at least 70 percent. Section 103(d) of the Safety Act expressly preempts any non-identical State standard on the subject of window tinting. Section 20-127(d) of the North Carolina statute appears to permit a single application of tinted film with a light transmittance of as little as 35 percent to be applied to vehicle glazing after factory delivery, but before sale to the public. This provision is preempted by Federal law, as is any other provision of North Carolina law which specifies that new glazing and glazing in new vehicles shall have some level of light transmittance other than the 70 percent minimum light transmittance requirement specified in Standard No. 205.

2. Modifications to vehicles and glazing by manufacturers, distributors, dealers and repair businesses after the first purchase of the vehicle or glazing in good faith for purposes other than resale. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted by Federal law if it permits the commercial installation of sunscreen materials so that the combination of the sunscreen material and the existing glazing no longer meet the 70 percent light transmittance requirement specified in Standard No. 205. This conclusion is based on the conflict between the North Carolina statute and the "render inoperative" provision of section 108(a)(2)(A) of the Safety Act. That provision prohibits any manufacturer, distributor, dealer, or repair business from rendering inoperative the compliance of a vehicle or an item of glazing with any of the requirements of Standard No. 205, including the minimum 70 percent light transmittance requirement.

Apart from the issue of preemption, I want to note that the provisions of State law cannot alter the effect of the "render inoperative" prohibition in Federal law. Regardless of how North Carolina law treats the combination of the glazing and the tinting, if it results in less than 70 percent light transmittance, a manufacturer, distributor, dealer, or repair business that installed such tinting on a vehicle would be liable for the Federal civil penalty discussed above.

3. Modifications to vehicles and glazing by individual owners themselves after the first purchase of the vehicle or glazing in good faith for purposes other than resale. As noted above, Federal law does not regulate modifications that individual owners themselves make to their vehicles or glazing after the first purchase in good faith for purposes other than resale, even if those modifications result in the vehicles or glazing no longer complying with the requirements of Standard No. 205, including the requirement for at least 70 percent light transmittance. The State of North Carolina is free to establish whatever restrictions, if any, it deems appropriate on individual owner modifications, without regard to the requirements of Standard No. 205. To the extent that the North Carolina statute seeks to address these individual owner modifications, it would not be preempted by Federal law.

4. Requirements for vehicles to be registered in the State of North Carolina. An individual State is free to establish whatever requirements it deems appropriate for vehicles to be registered in the State, provided that those State requirements would not prohibit the registration of vehicles that complied with the requirements of the Federal safety standards. Thus, the State of North Carolina is free to permit vehicles that do not comply with the requirements of Standard No. 205 to be registered in North Carolina. To the extent that the North Carolina window tinting statute seeks to establish requirements for vehicles to be registered in the State, it would not be preempted by Federal law.

We have also reviewed the May 6, 1988 letter from MEMA to Mr. Hiatt, in which MEMA discusses why it believes North Carolina's statute would not be preempted by Federal law. The MEMA discussion does not address the "render inoperative" provision in section 108(a)(2)(A) of the Safety Act, which prohibits commercial businesses from adversely affecting the compliance of elements of design installed in a vehicle or item of equipment in compliance with a safety standard, regardless of whether the vehicle is new or used. As was previously stated, Federal law prohibits any manufacturer, dealer, distributor, or repair business from ever installing window tinting material for the owner of a car if the combination of the original glazing and the tinting material results in less than 70 percent light transmittance through any window of the car.

To summarize, the North Carolina statute would be preempted to the extent that it seeks to permit some level of light transmittance other than that specified in Standard No. 205 for glazing in vehicles prior to the first purchase of the vehicles in good faith for purposes other than resale. Similarly, the statute would be preempted to the extent it seeks to permit the commercial installation of sunscreen materials with the result that the combination of the sunscreen material and the existing glazing no longer complies with the requirements of Standard No. 205. However, the North Carolina statute would not be preempted to the extent that it seeks to regulate the modifications that owners themselves can make to their vehicles or to the extent that it seeks to establish requirements for vehicles to be registered in the State, even if those requirements differ from those specified in Standard No. 205.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:205#VSA d:4/4/89

ID: 1770y

The Honorable James L. Oberstar
U.S. House of Representatives
District Office
231 Federal Building
Duluth, MN 55802

Dear Mr. Oberstar:

Thank you for your recent letter on behalf of Mr. Joseph Mikoll regarding occupant protection devices for school buses with a gross vehicle weight rating of 10,000 pounds or less. You indicated that you had read my November 3, 1988 letter to Mr. Mikoll. In that letter, I explained that Mr. Mikoll's "safety bar" devices could not be installed in small school buses in place of safety belts at every seating position, but that "safety bars" could be installed in addition to the required safety belts. I am pleased to have this opportunity to answer your two additional questions on this subject.

Question 1: Is there a procedure that [Mr. Mikoll's company] could follow to request a waiver of the provisions of Standard No. 222 which would allow its safety bar devices to be the sole passive restraint on small buses?

The National Traffic and Motor Vehicle Safety Act contains only one provision that would allow this agency to exempt vehicles from compliance with Standard No. 222 or any other applicable Federal motor vehicle Federal safety standard. Under the conditions specified in section 123 of the Safety Act (15 U.S.C. 1410), a motor vehicle manufacturer could file a petition asking this agency to temporarily exempt a group of motor vehicles from compliance with a safety standard or standards. Thus, a school bus manufacturer that wishes to install "safety bars" in some of its buses in lieu of the safety belts required by Standard No. 222 could seek a temporary exemption from Standard No. 222 for some of its buses.

It is my understanding that, while Mr. Mikoll's company manufactures the "safety bars" and other motor vehicle equipment, it does not manufacture any motor vehicles. If this understanding is correct, Mr. Mikoll's company is not eligible to file for a temporary exemption.

Question 2: Are DOT funds available to firms such as [Mr. Mikoll's company] to do rigorous testing and R&D on passive restraint systems?

This agency generally does not provide research and development support for unsolicited proposals, although we may solicit research proposals and award such contracts on a competitive basis. In addition, the Department has a Small Business Innovation Research Program that Mr. Mikoll may wish to learn more about. I have enclosed a guide on submitting proposals. This program is administered by the Transportation Systems Center, Kendall Square, MA 02142. Dr. George Kovatch is the Program Coordinator. However, Mr. Mikoll should be aware that funds for unsolicited proposals and small business development are extremely limited right now.

I hope you find this information helpful. Please let me know if you have any further questions or need some additional information.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

/ref:VSA#571 d:4/5/89

ID: 17712.drn

Mr. Harold V. Turnquist
Transportation Director
District 625
Saint Paul Public Schools
360 Colborne Street
Saint Paul, MN 55102-3299

Dear Mr. Turnquist:

This responds to your April 7, 1998, letter to Mr. Bob Pollack of the National Highway Traffic Safety Administration (NHTSA's) Region V Office, asking for information whether your department may use 15-passenger vans to transport adults and their children in your Early Childhood and Family Education Program (ECFE). As explained below, we do not consider the ECFE Program to constitute a "school" as that term is used in our statute. Thus, new buses leased to you for transporting ECFE Program participants are not required to be school buses under Federal law.

Your letter explains that the Saint Paul Public Schools Community Education Department operates a parent education program for adult learners called the ECFE Program. The program is described as follows:

Parents and their non school age children, who range in age from a few months to three or four years old, attend programs designed to assist the parent in developing skills necessary for raising their children. Class locations include both storefront locations (leased space) and public school buildings. When ECFE Programs are housed within school buildings there is no connection between the ECFE Program and the school program.

Your letter states that your Department is leasing several 15-passenger vans to transport ECFE Program participants. According to your letter, Minnesota state law does not require school bus transportation for ECFE Program participants.

In a telephone conversation with Dorothy Nakama of my staff, Mr. Mark Vogel of your office stated that the adult participants in the ECFE Program are not high school age, i.e., they are all older than eighteen. Mr. Vogel also stated that the young children transported in the vans are in vehicle safety restraints appropriate for their size and age.

By way of background, NHTSA is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 (copy enclosed) requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "school bus" as any vehicle that is designed for carrying 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. 49 U.S.C. 30125 (copy enclosed). Therefore, large (e.g., 15-passenger) vans that are likely to be used significantly to transport school students are "school buses."

The question raised by your letter, whether the ECFE Program constitutes a "school" is one the agency finds appropriate to resolve case-by-case, focusing on the type of services provided by the organization at issue.

The facts you have provided show that the adult participants in the ECFE Program are older than high school age. Your letter states that the adults attend programs "designed to assist the parent in developing skills necessary for raising their children." For purposes of NHTSA's safety standards, I have concluded that instruction in developing these skills are distinct from the academic instruction associated with a "school," and that therefore, the ECFE Program is not a "school." Accordingly, if a dealer were to sell or lease a new bus (e.g., a 15-passenger van) to the Saint Paul Public Schools Community Education Department for the exclusive use of the ECFE Program, that dealer need not sell or lease a new school bus.

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,
John Womack
Acting Chief Counsel
Enclosure
ref:VSA#571.3
d.4\29\98

ID: 17730.drn

Terry L. Voy, Consultant
School Transportation
Iowa Department of Education
Grimes State Office Building
Des Moines, IA 50319

Dear Mr. Voy:

This responds to your request for an interpretation regarding the use of 12 to15-passenger vans by child day care providers to drop off and pick up school children from school. You asked three questions, which are addressed below:

Question 1. Do the federal motor vehicle safety regulations relating to the sale and lease of school buses apply to vehicles [new buses] sold or leased to publicly or privately owned day care facilities who use these vehicles to transport school-aged children to and from school as a part of their day care services?

As explained below, the answer depends on whether the new buses will be "significantly" used to transport school children "to or from" school or related events. If the bus will be used for such purpose, a school bus must be sold, regardless of whether such transportation is provided by a school or a day care facility.

The National Highway Traffic Safety Administration (NHTSA) has the authority to regulate the first sale or lease of a new vehicle by a dealer. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Under our regulations, a "bus" is any vehicle, including a van, that has a seating capacity of 11 persons or more. Our statute defines a "school bus" as any bus which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events (emphasis added). 49 U.S.C. 30125. A 12 to15-passenger van that is likely to be used significantly to transport students is a "school bus."

If the new bus is sold or leased to transport students (e.g., leased on a regular or long-term basis), it is a "school bus" and must meet NHTSA's school bus standards. Conventional 12 to15-passenger vans are not certified as doing so, and thus cannot be sold or leased, as new vehicles, to carry students on a regular basis.

Whether the buses are "used significantly" to transport the students is an issue that the agency finds appropriate to resolve case-by-case, focusing on the intended use of the vehicle. In a June 1, 1998, letter to Cox Chevrolet (copy enclosed), we addressed the situation where students were being picked up from school "five days a week." In that letter, we stated: "In our view, such regular use of the vehicle to pick up students 'from school' (even if the same students are not transported each day), would constitute a 'significant' use of the vehicle." We also informed the dealer that when it leases new buses to the dance studio for use in transporting students "from school," it must lease buses that meet the Federal school bus standards.⁽¹⁾ We also believe that regular use on alternate days would be "significant."

The requirements for the use of a motor vehicle are determined by State law, so requirements of each State should be consulted to determine how students must be transported to and from school or school-related activities. In addition, NHTSA believes that school buses are one of the safest forms of transportation in this country, and therefore strongly recommends that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 12 to15-passenger vans that do not meet the school bus standards to transport students could result in increased liability in the event of a crash.

Question 2. If your response to question #1 above is in the affirmative, does the use of a vehicle owned or leased and operated by a day care provider for to and from transportation constitute "significant use" as the phrase is used in the statutory definition of a school bus?

I believe we answered this in response to Question 1. We may consider use of the bus for pupil transportation "significant" under our school bus regulations, even if the provider is a day care facility.

Question 3. If questions #1 and #2 above are answered in the affirmative, do the same federal sanctions apply to dealers who sell or lease vehicles of [more than 10] capacity to day care providers for to and from school transportation purposes?

The answer is yes, a dealer that sells or leases a noncomplying vehicle to a day care facility in violation of 49 U.S.C. Section 30112, would be subject to the same penalties that a dealer would face when selling noncomplying vehicles to a school. NHTSA's regulations at 49 CFR 578.6, Civil penalties for violations of specified provisions of Title 49 of the United States Code, subsection (a) states:

(a) Motor Vehicle Safety. A person that violates any of sections 30112 ... is liable to the United States Government for a civil penalty of not more than $1,100 for each violation. A separate violation occurs for each motor vehicle or item of motor vehicle equipment and for each failure or refusal to allow or perform an act required by any of those sections. The maximum civil penalty under this paragraph for a related series of violations is $880,000.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA#571.3 "school bus only"
d.8/3/98

1. As you may be aware, in interpretation letters of May 29, 1991 and September 6, 1991 to Ms. Vel McCaslin, Director of Grace After School, an after school care program, NHTSA stated that buses used to transport children to Ms. McCaslin's program would be "school buses" only if the program is a "school or school-related event." The September 1991 letter indicated that the program picks up children from three area schools and brings them to the church on a "daily" basis. These letters concluded that Grace After School did not appear to be a "school," that the program was not a "school-related event" and that NHTSA's school bus requirements thus did not apply. NHTSA has recently reexamined the two letters to Ms. McCaslin. Upon reconsideration, we have decided that the letters did not focus enough on the fact that the buses were being used to transport school children "from school," as specified in 49 U.S.C. 30125. Therefore, to the extent the May 29, 1991 and September 6, 1991 letters to Ms. McCaslin are inconsistent with this letter, they are hereby superceded.

ID: 17739.nhf

Mr. John Stricklin
c/o Midwest Medical Supply
2805 Bauer Street
Eau Claire, WI 54701

Dear Mr. Stricklin:

This responds to your letter requesting permission to remove the air bag sensor and disable the air bag system in your 1998 Chevy Express Van. You explain that you have Multiple Sclerosis and need to have a six way power seat base installed at the driver's seating position to allow you to transfer to and from your wheelchair. In your letter, you state that the vehicle's air bag sensor, which is located underneath the driver's seat, interferes with the installation of the six way power seat base and needs to be removed.

While the National Highway Traffic Safety Administration (NHTSA) cannot provide the specific relief you seek, because we are not authorized to grant waivers of safety standards under these circumstances, we can assure you that we will not institute enforcement proceedings against a commercial entity that removes the air bag sensor to install a six way power seat base on a vehicle to accommodate the condition you describe.

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 the 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. However, 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.

Standard No. 208, Occupant Crash Protection, requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the air bag sensor would affect the vehicle's compliance with Standard No. 208. However, as noted above, 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. Accordingly, NHTSA will not institute enforcement proceedings against a business that removes the air bag sensor 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 disarm the driver and passenger air bags. The vehicle manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing warning labels stating that the air bags have been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visors above the deactivated air bags. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment 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
Enclosure
Warning Labels
ref:VSA
d.6/1/98

ID: 17757.ztv

Frank Zalar, Quality Engineering & Regulatory Manager
General Electric Automotive Lighting
Worldwide Automotive Lighting Department
General Electric Company
1975 Noble Road, Nela Park
Cleveland, OH 44112-6300

Dear Mr. Zalar:

This is in reply to your letter of March 24, 1998, on optical axis markings for sealed beam headlamps.

Paragraph S7.8.1(b) of Federal Motor Vehicle Safety Standard No. 108 requires motor vehicles manufactured on or after September 1, 1998, to be equipped with headlamps which have a mark or markings to identify the lamp's optical axis that are visible from the front of the headlamp when installed on the vehicle. You present two types of markings for our consideration which you believe will satisfy this requirement.

The first headlamp lens marking is a "window" which is centered on the optical/mechanical axis of the lamp. We confirm that this is a sufficient marking under S7.8.1(b).

The second headlamp lens marking comprises "horizontal and vertical lines formed by flute edges of the lens the centermost of which denote the optical axis of the lamp." If the lamp does not employ horizontal flute edges at the lamp center, the headlamp center will be marked to indicate the optical axis. The intersection of the centermost horizontal and vertical lines also appear to be a sufficient marking under S7.8.1(b).

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.5/6/98