ID: babcock1.ztv

Mr. Robert Babcock
Manager, Corporate Affairs
Hyundai America Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108

Dear Mr. Babcock:

This is in reply to your letter of July 1, 2003, relating to my response of May 2, 2003 to a question you asked regarding possible preemption of a California statute relating to the distance between the front turn signal lamp and fog lamps (California Title 13, Section 691) by Federal Motor Vehicle Safety Standard (FMVSS) No. 108.

In brief, fog lamps are not required items of lighting equipment under FMVSS No. 108. Thus, if California were to preclude fog lamps, FMVSS No. 108 would not preempt such an action. Similarly, California can address the spacing between fog lamps and turn signal lamps. However, California could not regulate fog lamps in a manner that would be inconsistent with the functioning of front turn signal lamps, which we do regulate. Based on available information, we concluded that FMVSS No. 108 did not preempt the California statute.

You have expressed concern that your inquiry did not provide the full scope and context of your questions, and requested a further interpretation. You also requested our confirmation that "the California requirements would be preempted should that state fail to waive the inconsistent portions of its requirements in favor of FMVSS 108." We have been provided a copy of a letter sent to you on July 11, 2003, by the Department of California Highway Patrol (CHP) in reply to your letter to it of July 1, 2003 "regarding the spacing required between turn signal lamps and other forward-facing lighting devices." The CHP concluded that "the spacing requirements contained in 13 CCR for turn signal lamps in relation to fog lamps and passing lamps are, therefore, not identical to those contained in FMVSS 108." The CHP then cited California Vehicle Code (VC) Section 26103(b) which states, in effect, that the provisions of FMVSS No. 108 covering the same aspect of performance shall prevail over those that California has adopted. Then, the CHP concluded that "Any device complying with the FMVSS, with respect to any aspect of performance prescribed by the FMVSS, but in conflict with the VC or 13 CCR, is lawful in this state."

As a result of its conclusion, the CHP informed you that "turn signal lamps may be mounted closer to fog lamps and driving lamps than specified in 13 CCR, provided they comply with all requirements contained in FMVSS No. 108," and that it "accepts the manufacturers certification regarding compliance with the FMVSS . . . ."

CHPs letter indicates to us that it has acceded to Hyundais request for a favorable interpretation of California law relating to the spacing between fog lamps and turn signal lamps. In a telephone conversation with Taylor Vinson of this Office on August 8, 2003, you confirmed that you interpret CHPs letter as resolving any issue you may have had with the State relating to the spacing between fog lamps and turn signal lamps. Therefore, we regard your request of July 1 for a further interpretation as mooted by CHPs letter of July 11.

Different fact situations may arise in the future in which you would like us to provide an opinion on the relationship between California law and FMVSS No. 108 as it affects Hyundai, and we would be willing to consider them at that time.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.8/12/03

ID: Bailes.1

Mr. Alistair Bailes
Perei Group Ltd.
Sunbury House
Ivy Road
Aldershot
GU12 4TX
United Kingdom




Dear Mr. Bailes:

This responds to your letter, in which you seek confirmation as to whether your proposed front turn signal lamp would meet the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. You also asked whether your proposed lower beam headlamps visual/optical aiming mechanism would meet the standards requirements. We are pleased to have the opportunity to explain the relevant requirements of our standard.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. FMVSS No. 108 specifies requirements for original and replacement lamps, reflective devices, and associated equipment. The following represents our opinion based on the facts set forth in your letter.

Your letter described and depicted your proposed vehicle frontal lighting system as having a turn signal with a single reflector illuminated by a PY21W filament bulb. According to your letter, the housing containing the turn signal has two lenses, a primary lens (with an area of over 22 cm ²) and a smaller secondary lens which emits light but does so in a manner that is "superfluous to the performance and is primarily an aesthetic embellishment".(Looking at the exterior of the vehicle, the two lenses have the appearance of two separate lamps with a small amount of space between them.)You stated, however, that this second lens is necessary to meet European requirements that the turn signal be 400 mm or less from the extreme outer edge of the vehicle. In your letter, you asked whether this proposed design would comply with FMVSS No. 108.

Furthermore, your letter shows a pair of headlamps with two separate adjustment mechanisms for the lower beam. You described the system as having visual/optical aiming, with two adjustment mechanisms: (1) a vertical/horizontal adjustment and (2) a horizontal adjustment. Your letter stated that vertical aim is adjusted by rotating the vertical/horizontal adjustment, and horizontal aim is adjusted by rotating both adjustments. According to your letter, the system is not equipped with a vehicle headlamp aiming device (VHAD). In your letter, you asked whether this proposed design would comply with FMVSS No. 108 or whether a VHAD would be required. Alternatively, you asked whether compliance could be achieved by disabling or removing the horizontal adjustment, but while retaining the vertical adjustment.

FMVSS No. 108 sets forth requirements for turn signals (see S5.1) and their location (see S5.3) on a vehicle, as contained in Tables I-IV of the standard. (We note that although these tables distinguish between vehicles less than 80 inches (2032 mm) in width and those greater than 80 inches (2032 mm) in width, the requirements for the number and location of turn signals are essentially the same for the purposes of the present analysis.)For front turn signal lamps, the standard requires the vehicle manufacturer to install one amber lamp at or near the front of the vehicle on each side of the vertical centerline, at the same height, as far apart as practicable.

In paragraph S5.3.2(b)(1), the standard states, "When a vehicle is equipped with any lamp listed in Figure 19 of this standard [including front turn signal lamps], each such lamp must provide not less than 12.5 square centimeters of unobstructed effective projected luminous lens area in any direction throughout the pattern defined by the corner points specified in Figure 19 for each such lamp".Paragraph S5.3.1.7 of the standard further provides, "On a motor vehicle on which the front turn signal lamp is less than 100 mm from the lighted edge of a lower beam headlamp, as measured from the optical center of the turn signal lamp, the multiplier applied to obtain the required minimum luminous intensities shall be 2.5".

While we cannot provide a determination as to whether your proposed frontal lighting system would comply with FMVSS No. 108, we can offer certain observations based upon the photograph accompanying your letter. It appears that the front turn signal is amber, as required under the standard, and its location in the assembly suggests that it is capable of being mounted at or near the front of the vehicle on each side of the vertical centerline, at the same height, as far apart as practicable. Your letter states that the primary lens has an area greater than 22 square centimeters, which is the minimum size for front turn signal lenses on passenger cars required by the standard (see S5.1.1 and SAE J588 Nov. 1984). Further, you must ensure that the lamps effective projected luminous lens area would meet the standards visibility requirement of at least 12.5 square centimeters, as installed with all obstructions considered. Alternatively, you could design this lamp to conform to the visibility requirements specified in S5.3.2(b)(2).

We would bring two matters to your attention. First, if our understanding of your photograph is correct, this lamp would be mounted on the drivers side of the vehicle, in which case it appears that the upper beam is more outboard than the lower beam. However, Standard No. 108 requires the lower beam to be at a more outboard location, relative to the upper beam. Unless your photograph is mislabeled, your proposed design would apparently not meet that requirement.

Second, the standard necessitates that careful attention be paid to the spacing between the turn signal and the lower beam headlamp. Again, if this turn signal lamp is located less than 100 mm from the lighted edge of a lower beam headlamp, as measured from the optical center of the turn signal lamp, paragraph S5.3.1.7 requires the intensity of the turn signal to be multiplied by 2.5. Assuming for the sake of argument that the above issue related to upper/lower beam location is resolved and presuming that the primary lens meets all other requirements for a turn signal under FMVSS No. 108, we do not believe that the presence of a separate and discrete embellishment provided by the secondary lens would violate S5.3.1.7, because the turn signal provided by the primary lens would meet the requirements of the standard without being masked by the headlamp. Furthermore, we have no reason to believe that the illumination provided by the secondary lens would impair the vehicles required lighting equipment.

As to the issue of the horizontal aim of the lower beam headlamp, paragraph S7.8.5.3(b), Horizontal aim, lower beam, of FMVSS No. 108 provides, "There shall be no adjustment of horizontal aim unless the headlamp is equipped with a horizontal VHAD. If the headlamp has a VHAD, it shall be set to zero".In the 1997 final rule amending Standard No. 108 to permit headlamps that are visually or optically aimed, the agency adopted this requirement for horizontal aim to either be fixed and nonadjustable, or have a horizontal VHAD, because the lower beam would not have any visual cues for achieving correct horizontal aim, and it would not be possible to add such visual features without damaging the beam pattern (see 62 FR 10710, 10712 (March 10, 1997)). Visual/optical aim headlamps became part of FMVSS No. 108, but they were required to meet new beam pattern photometric requirements, with a beam pattern relatively insensitive to modest horizontal misaim.

In 1999, Federal-Mogul Lighting Products (Federal-Mogul) petitioned the agency for rulemaking to amend FMVSS No. 108 to allow visually/optically aimed headlamps to have a horizontal adjuster system that does not have the required 2.5-degree horizontal adjustment range or a VHAD indicator, as required by the standard. As we noted in our denial of Federal-Moguls petition, our 1997 final rule permitted visual/optical aim headlamps, based upon comments to the agency stating that vehicles could be built with such close tolerances that no horizontal aim adjustment would be necessary, and we noted that no useful visual cue for horizontal aiming exists (see 66 FR 42985, 42986 (August 16, 2001)). Because no visual cue was available for the purpose of horizontal aiming, the agency did not permit any horizontal movement of such headlamps, with the lamp essentially being correctly aimed as installed. As an alternative, horizontal-aiming VHADs were permitted (but not required) on visual/optical aiming headlamps as a means for manufacturers to meet European requirements for both a horizontal and vertical aim adjustment, but that the horizontal VHAD must be set to zero.

Because visual/optical aim headlamps do not currently have any feature that would allow anyone other than the headlamps manufacturer to objectively assess the accuracy of horizontal aim, a vehicle manufacturer seeking to adjust the horizontal aim of these lamps on a new vehicle would have no objective, repeatable way to assess the impact of its horizontal aim adjustments on real world lighting performance. Because of this limitation, neither the agency nor anyone else, including vehicle dealers and State safety inspectors, could assure correct headlamp aim. As stated in our denial of Federal-Moguls petition, we believe that it is incumbent upon the industry to develop a single method for horizontal aiming that could be incorporated into FMVSS No. 108, and we will not assess individual manufacturers petitions for alternatives to installation of a horizontal VHAD.

In light of the limitations that the standard places upon horizontal aiming of visual/optical aim headlamps, your proposed design, as presented, would not comply with the relevant requirements of Standard No. 108. The standard does not permit a horizontal adjustment mechanism for the lower beams of such headlamps, unless it is a VHAD that is set to zero.

Furthermore, we do not believe that elimination of the "horizontal adjustment (2)", as depicted in the diagram accompanying your letter, would suffice to remedy this. Your suggestion to remove the horizontal adjustment and "have only vertical adjustment" would apparently not meet the requirement of the standard, because the remaining adjustment is presented as a "vertical/horizontal adjustment (1)" and the letter states that horizontal aim is adjusted by rotating both adjustments. Thus, elimination of adjustment (2) would nevertheless appear to leave horizontal aim adjustment capability as part of adjustment (1), which is not permitted under the standard.

If you have any further questions, you may call Mr. Eric Stas of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:108
d.11/4/05

ID: bailey.ztv

The Honorable Kay Bailey Hutchison
United States Senate
10440 North Central Expressway, Suite 1160
LB 606
Dallas, TX 75231

Dear Senator Hutchison:

We are replying to your recent inquiry on behalf of your constituent, Walter E. Brown of Tyler. Dr. Brown is the owner of a 1995 BMW. When he attempted to buy a replacement lens for one of his headlamps, he was told by his local dealer that the lens was unavailable, and later, that the part was no longer available and that he would have to replace the entire headlamp assembly. BMW of North America telephoned him and told him that "a new government regulation precluded BMW from selling the lens separately." Dr. Brown was referred to Federal Motor Vehicle Safety Standard No. 108. He asked that you look into this matter for him.

As Dr. Brown indicated in his letter to you, the applicable regulation is Federal Motor Vehicle Safety Standard No. 108 (49 CFR 571.108,Lamps, Reflective Devices, and Associated Equipment). This regulation prescribes requirements for both original and replacement motor vehicle headlamps. Until 1983, all headlamps were required to be sealed and indivisible, so that if the bulb burned out or the lens cracked, the entire headlamp had to be replaced. Because headlamps were sealed, contaminants such as dust and moisture could not enter and the integrity of the reflector over the life of the headlamp was assured.

In 1983, Standard No. 108 was amended to allow non-sealed headlamps with replaceable bulbs. To maintain the integrity of the reflector, replaceable bulbs were required to have a seal at their base, and the headlamp lens had to be bonded to the reflector. These non-sealed headlamps had to pass environmental tests verifying their ability to resist heat, dust, and corrosion. However, the requirement that the lens be bonded to the reflector means that if either the lens or the reflector broke or was defective, the entire lens/reflector unit had to be replaced. This appears to be the type of headlamp that was installed on Dr. Brown's 1995 BMW. Therefore, in order to replace a cracked lens, he has to buy a lens/reflector assembly. This is necessary to ensure that his replacement headlamp provides the same continuing level of safety as his original headlamp.

Since December 1995, one specific type of replaceable bulb headlamp (one incorporating an on-board aiming device) has been permitted to have a lens designed to be replaceable, provided that the lamps pass even more stringent environment tests. However, all 1995 model cars were manufactured before the effective date of this new alternative headlamp requirement, and thus were not permitted to have headlamps with replaceable lenses. Since the headlamps in Dr. Brown's car do not have replaceable lenses, his dealer must replace the complete lens/reflector assembly. This has been the practice since 1983 and is not the result of "a new government regulation." It is the December 1995 regulation, not the older one, that permits replacement lenses for one type of headlamp.

I hope that this explanation will be useful to Dr. Brown.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/23/98

ID: baker2.crs

Mr. James Baker
Technical Services
State of New York
Department of Motor Vehicles
Division of Vehicle Safety Services
P.O. Box 2700 ESP
Albany, NY 12220-0700

Dear Mr. Baker:

This is in response to your letter of December 11, 1996 to Coleman Sachs of my staff, seeking clarification of information that this Office previously furnished you on the subject of gross vehicle weight ratings (GVWRs). In response to your letter of October 4, 1996, we supplied you with a number of interpretative letters that this Office has previously issued with regard to this and other related subjects.

In one of these letters, addressed to John Paul Barber, Esquire and dated May 24, 1993, we observed that it would be appropriate for a party who modifies a used vehicle so that its originally assigned GVWR is no longer appropriate "to add a label to the vehicle which indicates the appropriate loaded weight of the modified vehicle." This has prompted you to ask whether "an alterer (e.g. truck shop) that makes modifications of a used truck to allow it to carry additional weight [can] issue an additional label indicating the vehicle's new loaded weight (GVWR)." You have further asked whether the National Highway Traffic Safety Administration (NHTSA) will recognize this as the vehicle's GVWR.

As stated in our previous letter to you, NHTSA has long taken the position that the only parties who can assign or modify a vehicle's GVWR are the original manufacturer, a final stage manufacturer, or an alterer, and that modifications to an existing GVWR should only be made when an error has been committed in its assignment. NHTSA's vehicle certification regulations at 49 CFR 567.7 describe an "alterer," as used in this statement, as

a person who alters a vehicle that has been previously certified . . . 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 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 . . . (emphasis added).

Consistent with this description, a person who makes modifications to a used vehicle (i.e, a vehicle that has already been purchased for purposes other than resale) does not qualify as an "alterer," as that term is used in NHTSA's regulations. There is no regulatory requirement for such a person to affix a label to the vehicle once it is modified in such a manner that its GVWR is different from that shown on the original certification label, as there is for alterers under 49 CFR 567.7(b). Absent such a regulatory requirement, this Office stated in its letter to Mr. Barber that when modifications are made to a used vehicle that make the originally assigned GVWR inappropriate for the vehicle as modified, the modifier should add a label to the vehicle that indicates its appropriate loaded weight.

Consistent with this guidance, a party who modifies a used truck to allow it to carry additional weight can affix an informational label that identifies the loaded weight of the vehicle as modified. You have asked whether NHTSA would "recognize" the loaded weight specified by the modifier as the vehicle's GVWR. Because the modifier would not qualify as an original or final stage manufacturer or as a vehicle alterer, he would not be in a position to assign the vehicle a new GVWR. Consequently, NHTSA would not recognize the loaded weight that the modifier specifies on the informational label as the vehicle's GVWR. Nevertheless, the agency is aware that there is a need for the owners and users of the modified vehicle to be apprised as to how heavily it may safely be loaded. For that reason, NHTSA would encourage the modifier to add an informational label identifying the vehicle's new loaded weight.

There is, of course, no legal requirement for the modifier to affix such a label. The only legal requirement that is imposed on commercial entities that make modifications to used vehicles is that they "not knowingly make inoperative any part of a device or element of design installed on or in [the] vehicle . . . in compliance with an applicable motor vehicle safety standard . . . ." 49 U.S.C. 30122(b). The modifier must therefore ensure that the vehicle's brakes and other systems that may be affected by increased vehicle weight remain in compliance with all applicable Federal motor vehicle safety standards once the modifications are performed. Civil penalties can be imposed under 49 U.S.C. 30165(a) for violations of section 30112(b).

I hope this information is helpful. If you have any further questions regarding this matter, feel free to contact Mr. Sachs at the address above, or by telephone at 202-366-5238.

Sincerely,

John Womack

Acting Chief Counsel

ref:567

d:4/2/97

ID: BakerDaniels.ajd

Melissa M. Hinds, Esquire
Baker Daniels
300 North Meridian Street, Suite 2700
Indianapolis, IA 46204-1782

Re: Request for Interpretation

Dear Ms. Hinds:

This is in reply to your letter dated November 19, 2003 seeking an interpretation of 49 CFR Part 579, Reporting of Information and Communications About Potential Defects. In particular, you seek an interpretation of several terms in 49 CFR 579.4 and the reporting requirements under 49 CFR 579.5.

You note that the regulatory term "manufacturer" in section 579.4 includes "any parent corporation, any subsidiary or affiliate, and any subsidiary or affiliate of a parent corporation of such a person."You ask whether a manufacturers obligation to report an external communication under section 579.5 is triggered when communications are made to multiple recipients who are in a corporate family. In particular, you provided the following scenario with two questions.

"Big A" manufacturers motor vehicles. In addition to its own plants, Big A also has first and second tier subsidiaries, "Subsidiary B" and "Subsidiary C," both of which manufacturer motor vehicles sold under Big As brand and trademark. Enter "Supplier D," which manufacturers motor vehicle equipment for Big A, Subsidiary B, and Subsidiary C.

1) Supplier D identifies a defect in its motor vehicle equipment. It sends a letter identifying the defect to Subsidiary B and Subsidiary C.

2) Supplier D identifies a defect in its motor vehicle equipment. It sends a letter identifying the defects to Subsidiary B and Big A.

You ask if these communications are "external communications" for the purposes of section 579.5.

You also note that the answer to this question may depend upon the construction of the word "affiliate," which you state is not defined in the regulations.

All manufacturers of motor vehicle equipment, including equipment manufacturers that manufacture parts that enter into use only through a vehicle manufacturer and its subsidiaries, have an obligation, independent of the vehicle manufacturer, to provide certain communications to NHTSA pursuant to Sections 579.5(a) and (b). This obligation arises when the equipment manufacturer issues a notice, bulletin, customer satisfaction campaign, consumer advisory or any other communication within the scope of Section 579.5(a) or (b) and sends it to more than one manufacturer, distributor, dealer, lessor, lessee, owner or purchaser in the United States. Vehicle manufacturers have the same obligations for notices that they issue.

As you point out, the definition of manufacturer includes "any parent corporation, any subsidiary or affiliate, and any subsidiary or affiliate of a parent corporation of such a person." In applying this definition to the two hypothetical situations you presented, Big A, Subsidiary B and Subsidiary C would all be considered the same manufacturer for the purposes of 49 CFR Part 579. Thus, in each instance, Supplier Ds notice is not an external communication that needs to be submitted pursuant to 49 CFR 579.5 because it is not sent to more than one manufacturer, distributor, dealer, lessor, lessee, owner or purchaser. Therefore, Supplier Ds notices do not have to be submitted to NHTSA.

Lastly, while the term "affiliate" is not dispositive to the outcome here, we note that "affiliate" is defined in 49 CFR 579.4. For the purposes of Part 579, affiliate means:

In the context of an affiliate of or person affiliated with a specified person, a person that directly, or indirectly through one or more intermediates, controls or is controlled by, or is under common control with, the person specified. The term person usually is a corporation.

If you have any questions, you may phone Andrew DiMarsico of my staff at (202) 366-5263.

Sincerely,
Jacqueline Glassman

Chief Counsel
ref:579
d.2/2/04

ID: Barbara Y

ID: BBRmotorsports.1

Mr. Ryan Hall
BBR Motorsports, Inc.
19632 70^th Avenue South, Bay 3
Kent, WA 98032

Dear Mr. Hall:

This responds to your June 18, 2003, e-mail to David Coleman in the Office of Vehicle Safety (OVSC), in which you sought clarification of the National Highway Traffic Safety Administration (NHTSA) regulations for vehicle identification numbers (VINs) and how they apply to off-road vehicles. Specifically, you seek confirmation that NHTSA will not issue World Manufacturer Identifiers (WMIs) for off-road vehicles and that the agency does not object to private sector development of a suitable VIN system for such vehicles. Consistent with our enclosed May 21, 2003, letter to the Motorcycle Industry Council (MIC), we confirm that NHTSA does not regulate vehicles manufactured for off-road use, and we have encouraged industry groups to consult with State officials to develop an alternative WMI system for these vehicles that meet State law requirements.

Although we believe that the letter to the MIC fully explains this issue, the following points are offered in summary. NHTSA has the authority to regulate "motor vehicles," which are defined as vehicles "manufactured primarily for use on public streets, roads, and highways."49 U.S.C. 30102(a)(6). The Consumer Products Safety Commission (CPSC) has jurisdiction over the safety of off-road vehicles. Although NHTSAs contractor has in the past erroneously issued WMIs to off-road vehicle manufacturers under NHTSAs VIN regulations (49 CFR Part 565), the agency has taken steps to remedy this error.

We are sensitive to the difficulties facing off-road vehicle manufacturers in light of State laws demanding VINs for those vehicles that are consistent with Part 565 requirements. Therefore, NHTSA has agreed to stay rescission of the WMIs previously issued to off-road vehicle manufacturers until January 1, 2005, in order to permit sufficient time for the development of and migration to a new system for WMIs

issued to off-road vehicle manufacturers. Because we view the problem as primarily a matter of State law, we have encouraged close consultations with State officials, in order to develop a system that both meets stakeholder needs and does not cause confusion with Part 565 WMIs and VINs.

Particularly because NHTSA does not regulate off-road vehicles, the agency will not endorse any alternative WMI/VIN system nor any private sector organization(s) to undertake such development efforts.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:565
d.7/17/03

ID: bennett

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