ID: nht91-1.13

DATE: January 4, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Richard Cahalan -- Director of Core Services, Commonwealth of Massachusetts, Executive Office of Human Services, Department of Mental Retardation

TITLE: None

ATTACHMT: Attached to 49 CFR Chapter V (10-1-89 Edition) Part 567 (text omitted); Also attached to letter dated 8-2-90 from O.W. Harrell, Jr. to Office of the Chief Counsel (OCC 5073); Also attached to letter dated 7-25-90 from G.C. Shifflett to O.W. Harell (Harrell) Jr.; Also attached to letter dated 9-4-86 from Erika Z. Jones to Vincent Foster; Also attached to letter dated 11-26-79 from Frank Berndt to W.G. Milby

TEXT:

This responds to Mr. Oscar Harrell's letter requesting information about Federal regulations concerning the modification of vehicles to accommodate mentally retarded individuals. According to that letter, in response to conversations about this issue with Mr. George Shifflett of this agency's Office of Vehicle Safety Compliance, Mr. Harrell received copies of interpretation letters from my office to Mr. Vincent Foster dated September 4, 1986 and to Mr. W.G. Milby dated November 26, 1979. These letters express NHTSA's policy concerning modifications of vehicles to accommodate the special needs of handicapped individuals and the requirement in S 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act prohibiting commercial businesses from knowingly rendering inoperative any elements of design installed on a vehicle in compliance with a Federal motor vehicle safety standard. Given the public interest against restricting the mobility of the handicapped, it is the agency's policy, depending on the particular situation, to consider certain violations of that section as technical ones justified by public need.

In a telephone conversation with Marvin Shaw of my staff, you explained that a van conversion company modified new Dodge Maxi-vans for your agency before they were purchased. Among the steps taken by the converter to accommodate handicapped individuals are the removal of the "top," the addition of a new "bottom," and the installation of a wheelchair lift. According to Mr. Harrell's letter, the converter, when contacted last year, stated that the vehicles, after being converted, comply with State and Federal regulations. You indicated, however, that the converter failed to certify that the vans, as altered, comply with Federal motor vehicle safety standards.

I am pleased to have this opportunity to explain our laws and regulations to you. I apologize for the delay in our response.

The National Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards applicable to new motor vehicles and new motor vehicle equipment. Each manufacturer is required to certify that its products meet all applicable safety standards.

Based on your letter and the telephone conversation with my staff, it appears that the van converter would be considered an "alterer" for purposes of of Part 567, Certification (copy enclosed). Section 567.7 defines "alterer" as

A person who alters a vehicle that has previously been certified in accordance with S567.4 or S567.5, other than by the addition, substitution, or removal of readily attachable components such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, or who alters the vehicle in such a manner that its stated weight ratings are no longer valid, before the first purchase of the vehicle in good faith for purposes other than resale...

As an alterer, section 567.7 requires the vehicle converter to do the following:

(1) Supplement the certification label affixed by the original manufacturer by affixing an additional label stating that the vehicle as altered conforms to all applicable Federal motor vehicle safety standards. This supplemental label must state the name of the alterer and the month and the year in which the alterations were completed (see S567.7(a));

(2) Provide the modified values for the gross vehicle weight ratings or any of the gross axle weight ratings of the vehicle as altered if they are different from those shown on the original certification label (see S567.7(b)); and

(3) Provide the type classification, if the vehicle as altered has a different type classification from that shown on the original certification (see S567.7(c).

If the converter did not comply with these requirements, then it did not fulfill its certification responsibilities under Part 567. From what you have written to us, we assume that is the case. However, this does not in itself mean that the vehicles, as altered, do not comply with applicable safety standards or are otherwise unsafe. If you believe that the conversion of these vehicles poses a safety problem, you should contact this agency's Office of Enforcement and explain the specific safety problem.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-1.14

DATE: January 5, 1991

FROM: Chris Lawrence -- Chang & Lawrence

TO: August L. Burgett -- Safety Standards Engineer, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 3-21-91 from Paul Jackson Rice to Chris Lawrence (A37; Std. 108; VSA 108(a)); Also attached to letter dated 8-17-89 from Stephen P. Wood to Alan S. Eldahr (VSA 108(a)(2)(A))

TEXT:

I got your name from Mr. Patrick Maguire, Director of the Minnesota Trade Office in Taiwan. He said you might be able to answer questions I have concerning safety regulations for automobiles in the United States.

I am considering producing a new product, an electronic sign board for cars, that would display messages on the outside of the vehicle. The driver would select one of several pre-programmed messages by voice command; a voice recognition unit on the sign board would interpret the command and initiate display of the appropriate pre-programmed message. A voice output unit would confirm that the right message was selected by announcing the fact on a voice output unit.

My questions concern safety regulations that would restrict the use of lights to form messages on the outside of cars or from a window. The "Federal Register" (Standard 108 of Part 571 of Chapter 49) explains what lamps are specifically required on motor vehicles, and states that additional lamps that impair the effectiveness of the required lamps are prohibited. What is meant by "impairing the effectiveness of the required lamps"? And are there restrictions about what can be mounted in a window of a vehicle? Your assistance is greatly appreciated.

ID: nht91-1.15

DATE: January 8, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Oliver M. Sprangers -- A. T. Kearney, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 8-20-90 from Harry B. Skinner to Olivier M. Sprangers (OCC 5444); Also attached to letter dated 6-27-90 from Olivier M. Sprangers to James T. Brooks

TEXT:

This responds to your letter to Mr. James Travis Brooks of the Federal Highway Administration, U.S. Department of Transportation. Because you had questions about one of this agency's regulations, I have been asked to respond to your letter.

Your letter concerns a product that was developed by your client. Although no description of the product was provided, you state that it was manufactured so that it "fits within" 49 CFR S571.125 Warning devices. Your first question asked for advice on any approval process or other procedures that must be followed before your client's product may be sold in the United States. As will be more fully explained below, this agency cannot "approve" your client's product.

Some background information on U. S. requirements in this area may be helpful. The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; the Safety Act) gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 125, Warning Devices (49 CFR S571.125; copy enclosed). When the agency has issued an applicable safety standard, section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) provides 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 new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment are in conformity with the applicable standard. NHTSA has no authority under the Safety Act to approve, certify, or otherwise endorse any commercial product. Instead, section 114 of the Safety Act (15 U.S.C. 1403) establishes a self-certification process under which every manufacturer is required to certify that each of its products meet all applicable Federal safety standards. Therefore, your client, the manufacturer of the product, must certify that it conforms to Standard No. 125.

Section 108(b)(2) of the Safety Act (15 U.S.C. 1397(b)(2)) requires the manufacturer of the warning device to exercise "due care" in certifying that it conforms to Standard No. 125. To comply with these legal obligations, I suggest that you carefully examine the requirements of Standard No. 125 and determine if your client's product conforms with those requirements. As you will see, Standard No. 125 contains specific requirements related to a warning device's material, container, labeling, configuration, color, reflectivity, luminance, stability, and durability.

You should be aware that the Vehicle Safety Act establishes a civil penalty of $1,000 for each violation of a safety standard and a maximum penalty of $800,000 for a series of violations. In addition, the Act requires manufacturers to remedy their products if they fail to comply with any applicable safety standards.

Regarding other procedures that must be followed before your client's product may be sold in the United States, 49 CFR Part 566, Manufacturer Identification (a copy of which is enclosed) requires manufacturers of motor vehicle equipment to which a motor vehicle safety standard applies to submit to this agency identifying information and a description of the items they produce.

You next ask about the term "collapsible" in Standard No. 125. You state that, unlike the product offered by many manufacturers that fold into a long thin package, your client's product only folds to the extent that the support for the triangle may be turned and brought into the same flat surface as the triangle. Since this would result in a flat, triangular thin package, you ask whether this storage configuration would still be within the meaning of the term "collapsible."

Although the term "collapsibility" is used in S5.2.1(b) of Standard No. 125, the requirements for storing warning devices are set forth at S5.1.2. If your product complies with the requirements of S5.1.2, it is not required to meet any additional requirements to be "collapsible" for the purposes of Standard No. 125.

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

ID: nht91-1.16

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Thomas D. Turner -- Manager, Engineering Services, Blue Bird Body Company

TITLE: None

ATTACHMT: Attached to letter from Frank A. Berndt to W.G. Milby; Also attached to letter dated 3-18-77 from Frank Berndt to W.G. Milby; Also attached to letter dated 8-16-90 from Thomas D. Turner to Paul J. Rice (OCC 5110)

TEXT:

This responds to your inquiry concerning the applicability of Federal Motor Vehicle Safety Standard No. 221; School Bus Body Joint Strength, to specific joints attaching the floor and stepwell of a school bus. Your letter included a blueprint of the floor and stepwell structure of a large school bus, and asked whether the joints joining the stepwell to the Number 1 and 2 floor sections of the bus are required to comply with the joint strength requirement of Standard No. 221.

Based on the information provided in your letter, I conclude that the joints attaching the floor sections to the stepwell are required to comply with the joint strength requirement contained in S5 of Standard 221. I also conclude that the joints in the stepwell are subject to that requirement.

As you are aware, S4 of the Standard defines body panel, as:

"...a body component used on the exterior or interior surface to enclose the bus' occupant space."

S4 also defines "body panel joint" as:

"...the area of contact or close proximity between the edges of a body panel and another body component, excluding spaces designed for ventilation or another functional purpose, and excluding doors, windows, and maintenance access panels."

S5 of the Standard requires that body panel joints must comply with the strength requirement. The floor panels and stepwells of a bus are body components which come within the definition of body panel, as they serve to enclose the occupant space of the bus. The joints attaching the floor panels to the stepwell are body panel joints, since they represent the area of contact between the edges of a body panel (either a floor panel or the stepwell) and another body component (either the stepwell or a floor panel), and do not represent a space designed for ventilation or another functional purpose, or a door, window, or maintenance access panel.

I note that the joints attaching the stepwell to the floor sections are identical to, and in the same horizontal plane as, the joints used elsewhere in the floor assembly. I also note that the stepwell assembly described in your letter is also subject to the joint strength

requirement. The various portions of the stepwell serve to enclose the occupant space, and are therefore body components which come within the definition of body panel. Therefore, the joints attaching those portions of the stepwell which enclose the occupant space are body panel joints subject to the requirements of the Standard.

Your letter argues that the stepwell joints are exempted from the definition of "body panel joint" by virtue of their being designed for another functional purpose. You do not, however, state the purpose. I disagree with this assertion. As noted above, S4 of the Standard exempts spaces designed for ventilation or another functional purpose from the definition of body panel joint. The agency's longstanding criterion for determining the applicability of this exemption has been whether the body panel joint in question is considered to have a function in enclosing the occupant space. See, March 18, 1977 letter to W.G. Milby (copy attached).

In this case, the stepwell clearly has the function of enclosing occupant space. I note that, by enclosing occupant space at a location which provides access to the front door, the stepwell occupies a critical location in relation to an important exit. Because of its location, the integrity of the stepwell in a crash is as important as the integrity of any other component comprising the floor.

In addition, you argue that the joints between the floor sections and the stepwell need not comply with S5 because they are below the level of the floor. This argument is based on your interpretation of an April 26, 1976 letter from this office to W.G. Milby at Blue Bird which states that components located entirely below the floor level are not subject to the Standard.

That letter did not intend to exclude from the Standard all portions of a bus located below the plane formed by the primary floorline of the bus. The exclusion of those portions below the floor level was instead predicated on the assumption that there is a body panel (i.e., a floor panel) at floor level which encloses the occupant space, and which is located between the occupant space and that portion of the bus excluded from the standard. I note that the floor level of a bus is not a single continuous plane; it is determined at any particular point by the plane of the panel that comprises the floor at that point. Therefore, I do not agree that the stepwell-to-floor panel joints indicated in your letter are below the floor level or are excluded from the standard's joint strength requirements.

I hope you have found this information useful. Please do not hesitate to contact J. Edward Glancy of my staff at (202) 366-2992 if you have any further questions.

ID: nht91-1.17

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Paul A. Shaw -- Superintendent, Florence County School District Five

TITLE: None

ATTACHMT: Attached to letter dated 10-15-90 from Paul A. Shaw to PaulJ. Rice (OCC 5363)

TEXT:

This responds to your letter of October 15, 1990. In your letter you correctly state that a van designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events is considered a school bus under federal law. You then asked, "(d)oes federal law prohibit a school district from using a fifteen-passenger van that does not meet federal safety standards for school buses to transport students to athletic events, extra-curricular activities, and field trips?"

The answer to your question is no. The National Highway Traffic Safety Administration (NHTSA) has issued Federal motor vehicle safety standards applicable to all new school buses. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. On the other hand, without violating any provision of Federal law, a school district may purchase or use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the activities of a retail purchaser or user of a school bus. Therefore, to determine whether your school district may use noncomplying vans, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students. I encourage your school district to give your most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

Your letter also indicates that your school district purchased a "standard, fifteen-passenger 1990 Dodge van to transport students to various school-related events." I assume that by the term standard you are indicating that the van has not been certified as complying with all regulations applicable to school buses. If this van was purchased new, and if the dealer knew of your intended use, the dealer may have violated federal law. If you believe that you were sold a noncomplying vehicle, please contact NHTSA'S Office of Vehicle Safety Compliance, at the address given above.

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

ID: nht91-1.18

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Aggie Szilagyi -- Esquire, Senior Counsel, New Jersey State Legislature, Office of Legislative Services

TITLE: None

ATTACHMT: Attached to letter dated 9-18-89 from Aggie Szilagyi to Stephen P. Wood (OCC 3949)

TEXT:

Thank you for your letter on behalf of Senator Ronald L. Rice requesting the views of the National Highway Traffic Safety Administration (NHTSA) on whether the Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act)(15 U.S.C. 2021 et seq.) would preempt provisions of New Jersey Senate Bill (SB) 3434. I apologize for the delay in this response. It is my understanding that SB 3434 has been reintroduced in this session of the legislature as SB 876. For the reasons described below, it is our opinion that the provisions in the bill for the mandatory antitheft devices on certain car lines would be preempted by the Theft Act.

We understand that SB 876 would prohibit the sale or lease of a passenger automobile that is at or over the "estimated median manufacturer's suggested retail price for all passenger automobiles" unless it is equipped with a "passive anti-theft device" that "automatically activates upon turning off the motor of a vehicle and causes an alarm or ignition cut-off to engage." Violation of this provision would be punishable by a fine.

Although the Theft Act contains an explicit preemption provision (15 U.S.C. 2031) for parts marking systems which would not be triggered by SB 876, the bill would nonetheless create an obstacle to the accomplishment and execution of the overall Congressional objectives embodied in the Theft Act and would therefore be preempted.

The objective of the Theft Act was to establish a least-cost antitheft system, with a parts-marking system being the system of choice. The congress specified a $15-per-car limit for the cost of the system (15 U.S.C. 2024(a)), and made it clear that the alternative of installing antitheft devices was to be at the petition of the manufacturer, under procedures designed to ensure the effectiveness of such devices (15 U.S.C. 2025).

SB 876 would not only have the effect of requiring the installation of antitheft devices in vehicles that are marked under the Theft Act, thereby imposing a greater cost on the owners, but could require a vehicle with an antitheft device approved under the Theft Act to be equipped with a second antitheft device if the first device did not operate in the manner prescribed by SB 876. These effects would prevent the accomplishment of the Theft Act's objectives, and would thus satisfy the conditions for general preemption found by the supreme court in Hines V. Davidowitz, 312 U.S. 52 (1941) and followed in subsequent cases (Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Northwest Central Pipeline Corporation v. State Corporation commission of Kansas, (109 S. Ct. 1262 (1989)).

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

ID: nht91-1.19

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Chino O'Hara -- Minority Co-ordinator, Del Mar Manufacturing Company

TITLE: None

ATTACHMT: Attached to letter dated 12-11-90 from Chino O'Hara to Office of Chief Counsel, NHTSA (OCC 5539)

TEXT:

This responds to your letter of December 11, 1990 in which you ask whether your product "Husky Brake Anti-Squeek" needs approval of the Department of Transportation (DOT). An enclosure to your letter indicates that the product is intended for application on the pad surface of motor vehicle disc brakes to "stop brake squeeking" and to "produce a surface that gives better braking by acting as a "lubricant to the friction material." I am pleased to have this opportunity to explain our law and regulations for you.

The National Highway Traffic Safety Administration (NHTSA) (part of DOT) does not certify or approve motor vehicles or motor vehicle equipment for compliance with the Federal Motor Vehicle Safety Standards. Instead, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) establishes a "self-certification" process under which each manufacturer is responsible for certifying that every one of its products complies with all applicable safety standards. This agency periodically tests vehicles and items of motor vehicle equipment for compliance with the safety standards and also investigates other alleged defects related to motor vehicle safety.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. However, there are other requirements that may affect this product. First, manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety.

Section 102(4) of the Safety Act (15 U.S.C. 1391(4) defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . .

If the "Husky Brake Anti-Squeek" is manufactured and sold for the improvement of motor vehicle brake systems, it would be considered "motor vehicle equipment" within the meaning of the Safety Act. If either the equipment manufacturer or this agency were to determine that your product contained such a defect, the manufacturer would have to notify purchasers of the defect and remedy the problem free of charge to the purchasers.

Second, use of this product could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits manufacturers, distributors, dealers, or repair shops from knowingly "rendering inoperative" devices or elements of design that were installed in a motor vehicle to comply with the Federal Motor Vehicle Safety Standards. To avoid a "rendering inoperative" violation, the above-named parties should review the application instructions for your product and determine if installing the product following those instructions would result in the vehicle no longer complying with the requirements of the safety standards. The most relevant safety standard appears to be Standard No. 105, Hydraulic Brake Systems. That standard applies to new motor vehicles.

I hope that this information has been helpful. For your information, I am enclosing an information sheet for new manufacturers of motor vehicles and motor vehicle equipment and information on how to obtain copies of motor vehicle safety standards. Please feel free to contact us if you have any further questions.

Attachment

Information sheet from the NHTSA entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, dated September 1985. (Text omitted)

ID: nht91-1.2

DATE: 01/01/91 EST

FROM: Andy Tanner -- Glas-Weld of Jacksonville, Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re Subject: Labeling guidelines

ATTACHMT: Attached to letter dated 4-3-91 from Paul Jackson Rice to Andy Tanner (A37; Std. 205; VSA Sec. 108(a)(2)(A))

TEXT:

Upon the recommendation of Mr. Clark Harper, I would appreciate an official answer on a few labeling questions. Our company restores marred bus windows and renders them in like new condition in accordance with the Z 26.1 specifications.

Most of these windows were manufactured of acrylic materials produced by such companies as E I Dupont. For the sake of this example, the windows formed from Dupont product would carry the registered trade name "Lucite". As our windows are remanufactured the following questions arise:

a. Do we have to indicate the materials manufacturer or his trade name or is a generic designation which would exclude the origination information acceptable?

b. The windows, prior to restoration, conformed to the Z 26.1 specification. In our operation little material is removed from the surface and the windows retain the conformity with the original requirements as regards strength. The surface is then processed to insure good environmental properties. If the windows are basically unchanged, do we keep the original labeling or must unaltered properties be restated in our marking?

Your guidance would be greatly appreciated, as I wish to provide the proper information to both my customers and the involved Federal authorities.

Please do not hesitate to contact us, if I have failed to make any question adaquately clear.

ID: nht91-1.20

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Rebecca Flint -- Polymeric Systems, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 8-30-90 from Rebecca Flint to Paul Rice (OCC 5167)

TEXT:

This responds to your letter asking whether this agency must approve your product, an epoxy putty that could be used to repair leaking gas tanks. You said a customer would like to market your product "for fleet (buses and truck) maintenance." The answer is no, the National Highway Traffic Safety Administration (NHTSA) does not approve or certify products.

By way of background, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards (FMVSS's) applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all of our applicable safety standards. This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. NHTSA regularly tests vehicles and equipment for compliance with the FMVSS's as part of its enforcement program. In addition, the agency also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

There isn't any FMVSS that directly applies to repair putty for fuel tanks. Federal Motor Vehicle Safety Standard 301, Fuel System Integrity, sets performance requirements for new vehicles with a gross vehicle weight rating of 10,000 pounds or less and school buses. The standard does not apply to products sold to repair fuel tanks on vehicles already in use.

Repair of a damaged fuel tank in a new vehicle would be affected by the statutory requirement that the vehicle, when first sold to a consumer, must comply with FMVSS 301. If a new vehicle's fuel tank is repaired prior to such sale, the person making the repairs would be considered a vehicle alterer under our regulation on certification (Part 567, copy enclosed). As an alterer, the person must certify that the fuel system, as altered, continues to comply with all of the applicable requirements of Standard 301.

After a vehicle is first sold to a consumer, repairs to a vehicle are potentially affected by section 108(a)(2)(A) of the vehicle safety Act. That section prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly rendering inoperative any device or element of design installed in compliance with a FMVSS. However, the agency does not view that prohibition as applying to the repair of a fuel tank which has been previously installed in a vehicle and damaged in use. The agency considers the event that damaged the fuel tank and not any

subsequent action by a person repairing the damaged tank in a used vehicle as the event that "rendered inoperative" the compliance of the fuel tank with the standard. Thus, a person in one of the aforementioned categories may use the putty to repair a damaged fuel tank on a used vehicle without regard to the render inoperative prohibition. Of course, however, NHTSA urges all persons repairing motor vehicles to ensure that the repair is done safely.

The prohibition of section 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our require- ments, individual owners may use the repair putty regardless of its effect on the performance of fuel tanks. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

An issue raised by your inquiry is whether the putty is "motor vehicle equipment under the Vehicle Safety Act. Manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. As discussed below, we believe the putty is not motor vehicle equipment.

Section 103(4) of the Act defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any ACCESSORY, OR ADDITION TO THE MOTOR VEHICLE . . . (emphasis added).

In determining whether an item of equipment is considered an "accessory . . . to the motor vehicle," NHTSA applies not only the relevant statutory language, but also two criteria. The first criterion is whether a substantial portion of the expected uses of the item are related to the operation or maintenance of motor vehicles. We determine the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify). If the product satisfies both criteria, the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to your inquiry, the first criterion appears to be satisfied because a substantial portion of the expected uses of the putty is related to the operation or maintenance of motor vehicles. The second criterion, however, does not appear to be satisfied. In a December 21, 1990 telephone conversation with Ms. Fujita of my staff, you stated that the putty would be sold to professional mechanics only. Since your product is not intended for use by ordinary vehicle users, the putty is not considered to be motor vehicle equipment.

Our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for commercial vehicles used in interstate commerce. We will forward a copy of your letter to the FHWA for information about those requirements.

I hope this information is helpful.

ID: nht91-1.21

DATE: January 15, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Carol C. Verenes -- District Transportation Supervisor, Aiken County Public Schools

TITLE: None

ATTACHMT: Attached to letter dated 9-7-90 to Joseph J. Levin, Jr. from Carol C. Verenes (OCC-5226)

TEXT:

This responds to your letter of September 7, 1990 requesting "written correspondence relative to the U.S. Department of Transportation, National Highway Traffic Safety Administration, adopted safety standards effective April 1, 1977, which applies to vans transporting school children." Additionally, you requested "information pertaining to Federal Motor Vehicle Safety Standards No. 220, 221, and 222" because your district is considering modifying vans to transport school children.

By telephone conversation with Mary Versailles of my staff on September 28, 1990, you stated that your school district has stopped using its 12-15 passenger vans to transport school children, because you had been informed that such use violated federal law. You requested information on what needed to be done to modify your vans to comply with Federal school bus regulations. You also asked if a dealer who had sold your school district new vans which did not comply with school bus regulations would be required to modify the vans or replace them with complying vans.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. Federal law regulates the manufacture and sale of new school buses. The National Highway Traffic Safety Administration (NHTSA) defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. Note that in determining whether a vehicle is a school bus, one must consider both the vehicle's seating capacity, and its intended use. Thus, under federal law, a 12-15 passenger van is considered a school bus if its intended use is to transport school children.

NHTSA has issued Federal motor vehicle safety standards applicable to all new school buses. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. On the other hand, without violating any provision of Federal law, a school district may use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the use of vehicles. Therefore, to determine whether your school district may use noncomplying vans to transport school children, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

Your first question asked what must be done to bring your vans into

compliance as a school bus. Again, I must emphasize that there is no regulation under Federal law requiring your school district to retrofit your vans to comply with federal regulations. However, the following is a list of all Federal motor vehicle safety standards that include requirements for school buses:

Standards No. 101 through 104; Standard No. 105 (school buses with hydraulic service brake systems); Standards No. 106 through 108; Standards No. 111 through 113; Standard No. 115; Standard No. 116 (school buses with hydraulic service brake systems); Standards No. 119 and 120; Standard No. 121 (school buses with air brake systems); Standard No. 124; Standards No. 201 through 204 (school buses with GVWR of 10,000 pounds or less); Standard No. 205; Standards No. 207 through 210; Standard No. 212 (school buses with GVWR of 10,000 pounds or less); Standard No. 217; Standard No. 219 (school buses with GVWR of 10,000 pounds or less); Standard No. 220; Standard No. 221 (school buses with GVWR greater than 10,000 pounds); Standard No. 222; Standards No. 301 and 302.

Some of the standards which have unique requirements for school bus vehicles include, but are not necessarily limited to, Standards No. 105, 108, 111, 217, and 301; other standards (220, 221, and 222) are applicable only to school bus vehicles. Modification of the vehicles to comply with Standards No, 220 and 222 will be difficult and require recertification. The Federal motor vehicle safety standards are contained in Title 49 of the Code Of Federal Regulations (CFR), Part 571. You may find a copy of 49 CFR Part 571 at a Federal Depository Library in your State. If you so choose, you may purchase a copy of the volume of Title 49 which includes Part 571 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238.

Your second question asked whether the sale between the dealership and the school could be dissolved if you determined that any purchases of new vans did not comply with the regulations for school buses. While we have no regulations which void or "dissolve" sales of noncomplying motor vehicles, the school might be able to contact the dealership that sold the noncomplying school buses and arrange to have the vehicles repurchased. In addition, if you believe that you had been sold noncomplying vehicles, and that the dealer knew of your intended use, the school should contact NHTSA's Office of Vehicle Safety Compliance, at the address given above, and inform them of the apparent violation of federal law. In the past, many dealers who have been notified by NHTSA of the illegality of selling noncomplying vans as school vehicles repurchased the vehicles that were sold in violation of the law. However, these instances involved essentially new vehicles. Section 154(a)(2)(A)(iii) of the Safety Act specifies the repurchase remedy as, "the purchase price of such motor

vehicle in full, less a reasonable allowance for depreciation" (emphasis added). Thus, it may be more cost efficient for the school district to use these vans for other purposes within the district or transfer them to other county functions. For future vehicle purchases, it may be advisable to inform dealers specifically that the vehicles will be used for transporting school children.

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