ID: 20391.ogm

Mr. Gil De Laat
Manager, Governmental Affairs
Subaru of America
Subaru Plaza
P.O. Box 6000
Cherry Hill, NJ 08034-6000

Dear Mr. De Laat:

This responds to your letter asking for our interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 207, Seating systems, as it applies to the seat belt web guide attached to the seatback of a rear center seat. I apologize for the delay in our response. You describe the web guide as a plastic extrusion that forms a loop to guide seat belt webbing. Your letter further states that the guide does not have any structural benefit for the purposes of seat or seat belt performance, but instead acts to position the seat belt for user comfort. You ask that we provide our opinion of the applicability of S4.2 of FMVSS No. 207 to the seat belt guide.

FMVSS No. 207 is intended to ensure that seats and their attachments are strong enough not to fail as a result of "forces acting on them as a result of vehicle impact" (S1). S4.2 sets forth the general performance requirements for occupant seats and specifies that a seat shall withstand certain forces in a forward direction (S4.2.(a)), certain forces in a rearward direction (S4.2.(b)), and certain forces applied to the seatback (S4.2(d)). In addition, if a seat belt assembly is attached to the seat, the seat shall simultaneously withstand the loads specified in S4.2.(a) or (b) and the belt anchorage loads of S4.2 of FMVSS No. 210, Seat belt assembly anchorages.

We assume your question is not whether the seat would be subject to S4.2, which it undoubtedly is, but rather whether the addition of the seat belt webbing guide to the seat back requires that the seat be tested in accordance with the requirements of S4.2(c). We note that S4.2(c) applies in those instances where a seat belt is "attached" to the seat. The use of a webbing guide that is permanently attached to the seat raises the question of whether such a guide is an "attachment" for the purposes of S4.2(c).

Your letter states that the web guide "does not have any structural benefit for the purposes of seat or seat belt performance, but rather acts to position the seat belt webbing for user comfort." Under the conditions you describe, it is our opinion that the web guide is not an "attachment" of the seat belt assembly to the seat for the purposes of FMVSS No. 207. A seat that has no seat belt anchorage attached to it will not experience the load from the seat belt in a crash. You have represented that the web guide serves no structural purpose and will not transfer seat belt loads to the seat itself. Since the seat will not be loaded in a crash by the forces generated by the safety belt, it is not necessary that the seat be capable of withstanding the load from the belt. Thus, the use of the web guide you describe does not require that the seat be subjected to the seat belt anchorage loads of FMVSS No. 210.

I hope that this is responsive to your inquiry. If you have any questions, please contact Otto Matheke of this office at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:207
d.7/10/00

ID: 20393.ztv

Mr. Thomas N. Nelson
President
Athey Products Corporation
1839 S. Main Street
Wake Forest, NC 27587
FAX 919-556-0122

Dear Mr. Nelson:

We have received your petition, dated July 23, 1999, pursuant to 49 CFR Part 555, for a temporary exemption from S5.5.1 of Federal Motor Vehicle Safety Standard No. 105, which requires heavy vehicles manufactured on and after March 1, 1999, to be equipped with an antilock brake system.

Noting that the petition estimated October 1, 1999, as the date by which full compliance will be achieved, Taylor Vinson of this Office telephoned Larry Fetter of your company on July 30, 1999, for a clarification. We learned that the vehicles for which exemption is sought are model M8A and M9D Mobil Street Sweepers that Athey has manufactured from March 1, 1999, to date, and which have already been sold, without antilock brake systems. Thus, it appears that your company may be in violation of 49 USC 30112(a) for manufacturing and selling nonconforming vehicles. Athey may also be in violation of 49 USC 30115 if it certified that the vehicles complied with all applicable Federal motor vehicle safety standards (or if it failed to affix any certification at all).

The exemption authority under which you applied, 49 USC 30113 implemented by 49 CFR Part 555, is prospective in nature, allowing acts that are otherwise prohibited by 49 USC 30112(a), such as manufacturing and selling noncomplying motor vehicles. We have no authority to excuse violations of 49 USC 30112(a)that have already occurred.

When a manufacturer determines that there is a noncompliance in its product, it is required to take immediate steps to notify the National Highway Traffic Safety Administration formally by following the procedures set forth in 49 CFR Part 573. Athey must follow this procedure now with respect to the sweepers manufactured since March 1, 1999. Athey is then required to notify dealers and purchasers pursuant to 49 CFR Part 577, and to formulate a remedy for the noncompliance. The three statutory remedies are repair of the noncompliance (by retrofit in this instance), repurchase of the vehicle, or replacement with a conforming equivalent. With respect to the Athey sweepers, "repair" could entail governing the maximum speed from 50 mph to 33 mph or less, the speed at which an antilock system is required.

However, we do have authority to exempt a manufacturer from the notification and remedy requirements upon finding that the noncompliance is inconsequential to motor vehicle safety. You may file an inconsequentiality application by following the procedures set forth in 49 CFR Part 556. Petitions under Part 556 should be submitted not later than 30 days after a company notifies the agency under Part 573 that a noncompliance exists.

Unlike the granting of a Part 555 petition, the granting of a Part 556 petition does not allow you to continue to manufacture and sell a nonconforming motor vehicle; that is allowable only under a Part 555 exemption decision. This means that Athey may no longer manufacture and sell the two models of noncompliant vehicles in the United States until they fully conform to Standard No. 105. In addition, the granting of a Part 556 petition does not cure the original violations of Sec. 30112(a) and we may still impose a civil penalty because of them. The only effect of a Part 556 grant is to excuse a manufacturer from notifying and remedying the noncompliance.

Please inform us whether Athey wishes to withdraw its Part 555 petition or whether it would like us to consider it further. Athey could continue to manufacture, but not sell or deliver, noncompliant street sweepers in the interim period. Were the petition granted, the vehicles could then legally be certified as exempted and sold in the United States. However, we would not anticipate a decision until sometime in November 1999. If you wish us to consider the petition further, please supply arguments why an exemption would be in the public interest and consistent with the objectives of motor vehicle safety. This information is required by 49 CFR 555.5, but was lacking in your petition.

In summary, because of Athey's apparent noncompliance with Standard No. 105, it must file a notification document with us (part 573) and follow that with the form it will use in notifying other persons (part 577). Regarding vehicles produced from March 1, 1999, until now, Athey may file, if it wishes, a request to be excused from the requirements to notify dealers and purchasers and to remedy the noncompliance on the grounds of inconsequentiality (part 556). Regarding future production, if Athey wishes further consideration of its previously-filed part 555 temporary exemption petition, it should notify us and supplement the petition with public interest and safety arguments.

Taylor Vinson may be reached at 202-366-5263 if you have further questions on this matter.

Sincerely,
Frank Seales, Jr.
Chief Counsel
NCC-20 ZTVinson:mar:7/30/99:62992;OCC 20393
cc: Ncc-01 Subj/Chron No interp

ID: 20398.drn

Ms. Sarah Swartzendruber
Law Clerk
Phelan, Tucker, Mullen, Walker
Tucker, Gelman, LLP
321 East Market
Iowa City, IA 52244

Dear Ms. Swartzendruber:

This responds to your request for an interpretation of a child care facility's responsibilities when it is considering purchasing a 15-person van to transport children. Our answer is provided below.

Your letter states that your firm's client operates a before- and after-school care program. The program is physically located at a school. The client would not use the van to transport children to or from school, and would use the van only "during summer vacation, when school is not in session." You ask us to determine whether the program constitutes a "school," and how we have defined "significant" use of a vehicle.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. 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. 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 "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, 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. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit child care facilities from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Iowa law to see if there are regulations about how the client must transport school children.

Responding to your question whether the before- and after-school care program is a "school," NHTSA distinguishes between facilities that provide educational programs and those that are strictly custodial. We do not consider child care programs that are custodial in nature to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus. Thus, if a custodial center were purchasing the bus to use significantly to transport students to or from school or school-related events, a dealer knowing of this purpose is required to sell a school bus.

You also ask for a definition of "significant" use. Your letter stated that the client would use the van only during the summer, when school is not in session. If no "significant" to or from school transportation would be provided by the client, a dealer would not be required to sell a school bus. In a letter of May 20, 1999 to Mr. Dennis Seavey (copy enclosed), we stated that we consider transportation to or from school "on any two days during a week to be regular use and therefore 'significant.'"

In fully addressing the type of vehicle that should be used to transport children, your client should take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses."

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:571.3#VSA
d.8/24/99

ID: 20409.drn

Mr. Rod Nash
Vice President - Engineering
Collins Bus Corporation
P. O. Box 2946
Hutchinson, KS 67504-2946





Dear Mr. Nash:

This responds to your request for interpretation of the requirements of Federal law applicable to the sale of buses intended to be used for the transportation of children by day care providers. I regret the delay in this response. Your questions are answered below.

Your first question is: if a day care center wishes to purchase a bus to transport its children to their homes, what kind of assurances does it need to provide a dealer or manufacturer that the intended use does not dictate a school bus? You note that the user is the only person who can actually know how the bus will be used during its life.

You ask your question against the following background. As you know, any person selling a new "school bus" must sell a bus that meets our school bus standards. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, the National Highway Traffic Safety Administration (NHTSA) decides, 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. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons (49 CFR 571.3(b)).

Our longstanding position has been that day care centers in and of themselves are not "schools" within the meaning of our statute because of their primarily custodial, rather than educational, emphasis. However, when a day care center is providing transportation to or from school or school-related events, then the transportation constitutes the described action -transporting students to or from school-contemplated by the statute. As you may be aware, in a letter of July 23, 1998, to Mr. Don Cote of Northside Ford (copy enclosed), we advised that when a dealership sells or leases a new bus to a child care facility to drop off and pick up school children from school "on regular school days," the dealership must sell or lease only a bus that meets the Federal motor vehicle safety standards for school buses.

There is no definitive answer to your question, but I will provide a basic guideline. We currently do not presume that day care centers universally are engaged in the transportation of children to or from school. In addition, some day care centers are sole proprietorships and some do not have a term such as "Day Care Center" in their names. However, where it is likely that the purchaser or lessor of a new bus is a day care center, in light of the widespread publicity that has surrounded the issue, we expect a dealer to inquire as to whether the vehicle would also be used to drop off or pick up students from school. If it appears that a vehicle will be used significantly for student transportation, the requirement to sell a certified school bus that meets the Federal motor vehicle safety standards for school buses would apply. Confirmation in writing would appear to be prudent.

Your second question is: whether it is possible for State law to "direct" transportation for school children in vehicles other than school buses? NHTSA's laws apply to the manufacture and sale of new motor vehicles. Each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, for the transportation of school children. We are not aware of any State that "directs" the use of buses other than school buses for this purpose, although some States permit the use of non-school buses. In any event, a State "directive" to transport children in vehicles other than school buses would not affect dealers' responsibilities under Federal law with respect to the sale or lease of new buses for pupil transportation.

Our "school bus" definition determines which new vehicles sold or leased by dealers are required under Federal law to meet the Federal motor vehicle safety standards for school buses. If a State has a different school bus definition, that definition determines the applicability of State requirements, but it has no effect on the Federal requirement on dealers to sell certified school buses. To illustrate, if a State chooses to define "school bus" to include only buses with a capacity of 15-passengers or more, that definition would not affect the obligation of dealers in selling or leasing 10- to 14-passenger buses under Federal law. If a dealer sold or leased a new bus of this size for school transportation, the dealer would have to ensure that the bus was certified to the Federal motor vehicle safety standards applicable to school buses.

Your third question is: how does a day care center obtain a vehicle that a State says it should use, even though it would be a vehicle that NHTSA prohibits a dealer from selling as new? As above, we are not aware of any State that "says" a day care center should not use a school bus to carry children to or from school. The fact that States may permit the use of such vehicles does not affect Federal requirements. Under Federal law, a dealer may not sell any new bus for the transportation of children to or from school or school-related activities unless the bus has been certified by its manufacturer as complying with all Federal school bus standards. Thus, State law could not permit dealers to sell new, noncomplying 15-passenger vans for pupil transportation. In general, we understand that vehicles that meet Federal and various State standards are available.

In fully addressing the type of vehicle that should be used to transport children, I also bring the following matter to your attention. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to the Governors of the Fifty States and the Mayor of the District of Columbia:

Require that all vehicles carrying more than 10 passengers (buses) and transporting children to and from school and school related activities, including, but not limited to Head Start programs and day care centers, meet the school bus structural standards or the equivalent as set forth in 49 Code of Federal Regulations Part 571. Enact regulatory measures to enforce compliance with the revised statutes.

The NTSB also issued the following Safety Recommendation to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using buses that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am also enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than non-school buses, such as 15-person vans.

I hope this information is helpful. If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:VSA#571.3
d.5/9/01

ID: 2041o

T.P. Bailey, Legislation Engineer
International Automotive Design
I.A.D. House
Dominion Way
Worthing, Sussex BN14 8LU England

Dear Mr. Bailey:

This responds to your letter of June 10, 1988, in which you asked for an interpretation of Standard No. 104, Windshield Wiping and Washing Systems (49 CFR 571.104). More specifically, you asked two questions about the requirements set forth in section S4.1.2, Wiped area, of Standard No. 104.

You first asked whether section S4.1.2 of Standard No. 104 applies only to passenger cars. The answer to this question is yes. Section S4.1.2 reads as follows: "When tested in accordance with SAE Recommended Practice J903a, May 1966, each passenger car windshield shall ..." (emphasis added). The underlined language explicitly limits the requirements to passenger car windshields. Hence, the windshields on other vehicle types are not subject to the requirements of S4.1.2.

Your second question involved the dimensions of "Area A" used to determine whether a car complies with the wiped area requirements in section S4.1.2. Section S4.1.2.1 of Standard No. 104 specifies that the dimensions for "Area A" are established as shown in SAE Recommended Practice J903a, May 1966, and specifies that at least 80 percent of "Area A" must be wiped. Following the procedures set forth in the SAE Recommended Practice, you noted that "Area A" on a hypothetical vehicle would extend to the daylight opening area on one side of the windshield and extend beyond the daylight opening area on the other side of the windshield. When calculating the percentage of Area A that is wiped, your letter sets forth four different possible dimensions for Area A and asks which is used to determine whether the vehicle wipes at least 80 percent of Area A. Again section S4.1.2 explicitly answers this question. That section specifies that each passenger car windshield shall wipe 80 percent of Area A that "is within the area bounded by a perimeter line on the glazing surface 1 inch from the daylight opening."

Please let me know if you have any further questions or need any additional information.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:104 d:ll/3/88

ID: 20421.nhf

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc.
P.O. Box 540
Kinderhook, NY 12106

Dear Mr. Babirad:

This responds to your letter requesting information regarding the modification of a new Chrysler Grand Caravan for a driver with quadriplegia as a result of a spinal cord injury. You explain that the driver was evaluated and trained by a driver rehabilitation specialist who prescribed installing zero effort steering, a horizontal steering column and servo hand controls to accommodate the driver's limited range of motion. Specifically, you request permission to remove the original equipment manufacturer's (OEM) steering column and steering wheel so that the vendor may install the high tech steering system to accommodate the driver's restricted strength and range of motion.

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

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

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

Replacing the vehicle's original steering column and steering wheel and removing the driver's air bag could affect compliance with three standards: Standard No. 203, Impact protection for the driver from the steering control system, Standard No. 204, Steering control rearward displacement, and Standard No. 208, Occupant Crash Protection. For example, 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 would affect the vehicle's compliance with Standard No. 208. However, as noted above, in situations such as this one where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering column, steering wheel, and air bag 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 air bag. The manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing a warning label stating that the air bag has been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visor above the deactivated air bag. 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 Label
ref:VSA
d.11/23/99

ID: 20479.ztv

Mr. Wayne J. Highley
1701 Pontiac Road
Fairview Heights, IL 62208-1432

Dear Mr. Highley:

This is in reply to your letter of July 30, 1999, to Taylor Vinson of this Office asking several questions about motor vehicle lighting.

You are "inquiring into the legitimacy of testing a supplemental rear lighting system which would be in addition to and placed to the sides or proximity of the third brake light." This system consists of amber lights that are energized when the accelerator pedal is released "and would be non-operational and over-ridden by red lights when the brakes are applied."

The possibility of advance brake warning systems is one that has intrigued the public and which has concerned us for many years. In response to these concerns, we published a policy statement of November 4, 1998, setting forth our position on evaluation of new signaling ideas (63 FR 59482-92). I enclose a copy for your information. The discussion on p. 59489 explains the process that we follow.

We first ask whether a new signal lighting idea requires a change in the standardized operation of appearance of a required lamp or piece of lighting equipment required by Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment. The answer in your case is no; you would provide a supplementary lighting system. Because S5.1.3 of Standard No. 108 allows auxiliary lighting equipment provided there is no impairment of the effectiveness of lamps and reflectors required by the standard, our next question is whether your system would have an impairing effect, e.g., by masking the operation of required lighting or introducing ambiguity into the meaning of required lighting. Because the lamps in your system operate only when the accelerator is released and are extinguished when the brake pedal is applied, there would be no impairing effect. This means that installation and use of your system, as you have described it, would not violate a Federal regulation.

You have asked whether we are aware of any current or pending fleet studies that would utilize the system you describe. We know of no such studies.

You have also asked whether you might begin such a study, and what criteria would we suggest to insure the validity and integrity of such a fleet study. You may begin such a study, but the opinions of this office are legal in nature and we are not in a position to advise you as to how to conduct the study. We suggest that you review our policy statement for some guidance.

Finally, you have asked whether there is any funding available for such an item or such a study. There is no funding available; the agency funds only its own research lighting projects.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:108
d.11/5/99

ID: 20504.ztv

Mr. Don Thompson
Traffic Manager
Al-Jon, Inc.
14599 2^nd Avenue
Ottumwa, IA 52501-9281

Dear Mr. Thompson:

This is in reply to your letters of August 11 and August 12, 1999, regarding the Al-Jon Impact 5 Car Crusher and Al-Jon 400 Baler. Transport Canada has informed you that these vehicles are trailers, must comply with the Canadian Motor Vehicle Safety Standards for trailers, and must demonstrate compliance before they can be imported into Canada.

You explained to Taylor Vinson of this Office on August 16 that, until recently, Al-Jon has had no problems exporting its car crusher and baler to Canada without the need to comply with Canadian standards. As Mr. Vinson explained to you, Canada is free to adopt whatever regulatory posture it deems appropriate regarding these vehicles, and is not bound by our views in this matter.

However, we will discuss the status of these vehicles under the laws that we administer. You state that these vehicles are "car crushers" and "balers," and not "trailers." We have no definitions for "car crushers" and "balers." The National Highway Traffic Safety Administration regulates "motor vehicles." In part, a "motor vehicle" is statutorily defined as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways." (49 U.S.C. 30102(a)(6)). A "trailer" is defined as a "motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

The type of equipment you produce is not easily categorized under our statutory definition of "motor vehicle." On the one hand, you state that your car crusher was made portable "to allow the scrap dealer to go on location" to crush discarded cars, and that the baler is also portable. Your literature also calls your car crusher "road legal." Both items of equipment therefore appear to be designed to be used on the highways, in the sense of being drawn by another vehicle while moving from site to site. On the other hand, the items of equipment perform their functions off the public roads.

Whether we would consider your equipment to be motor vehicles depends on their use. For example, we interpret our statutory definition not to encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of the statute we administer, since the on-highway use is more than "incidental."

Similarly, if your items of equipment typically spend extended periods at a job site, and only use the public roads infrequently to move between job sites, we would not consider them to be motor vehicles under our statute. We would instead consider the use of your devices on the public roads to be incidental and not their primary purpose. However, if your items of equipment used the roads more than on an incidental basis, they would be considered motor vehicles and subject to our standards that apply to trailers.

We note that our interpretation of the statutory definition of motor vehicle is partly based on judicial decisions. In the past, we interpreted the term more broadly.

Recently, Transport Canada informed us that the Canada Motor Vehicle Safety Act, in pertinent part, defines "motor vehicle" as "any vehicle that is capable of being driven or drawn on roads by any means other than muscular power exclusively. . . ." This definition differs from ours in that it applies to all trailers, not just those manufactured primarily for use on the public roads. This statutory difference in definitions explains why Canada may regulate vehicles under its law that we do not regulate under our Federal motor vehicle safety law.

You may phone Taylor Vinson again if you have questions (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.11/5/99

ID: 20513.ztv

Mr. Gary D. Weintraub
185 East 85^th St.
New York, NY 10028

Dear Mr. Weintraub:

This is in reply to your letter of August 9, 1999, asking about the legality of front "brake" lamp systems.

I enclose copies of two notices that we published in the Federal Register in December 1996, (61 FR 65510) and November 1998 (63 FR 59482) on supplementary vehicle lighting systems, including, specifically, front "brake" lamp systems (see discussions at 65515, and 59484 and 59486).

In response to our December 1996, request for comments, Volvo commented that we should not prohibit front "brake" lamps. As we explained in the November 1998 response to the comments (at 59484), front "brake" lamps are prohibited only if they impair the effectiveness of front lighting equipment required under Federal law, and that "assuming front 'brake' lamps were implemented so as not to interfere with the effectiveness of required front lighting equipment, front brake lamps are permitted to be installed on vehicles now, without any changes to the [U.S. Federal motor vehicle lighting standard]."

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:108
d.10/21/99

ID: 20550.drn

Ms. Pat Murrell
Director of Child Development
Louisville Central Community Centers, Inc.
1025 Chestnut St.
Louisville, KY 40203

Dear Ms. Murrell:

This responds to your request for an interpretation of a child development center's responsibilities when it considers the type of vehicle it should use to transport children. Our answer is provided below.

Although your letter mentions pre-school, you do not specify the ages of the children under your Centers' care. I will therefore assume that the Centers care for both school age children and pre-school children.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. 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. 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 "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, 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. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit child development centers facilities from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Kentucky law to see if there are regulations about how you must transport your children.

NHTSA distinguishes between facilities that provide educational programs and those that are strictly custodial. We do not consider child care programs that are custodial in nature to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus. Thus, if a custodial center were purchasing the bus to use significantly to transport students to or from school or school-related events, a dealer knowing of this purpose is required to sell a school bus.

In fully addressing the type of vehicle that should be used to transport your children, I am asking that you take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. As you requested, I am enclosing copies of 49 U.S.C. Sections 30112 and 30125. In lieu of the Federal motor vehicle safety standards for school buses, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." Please be advised that there are small school buses (under 10,000 lb gross vehicle weight rating) available that seat 15 children. Because it would not be cost effective to do so, we do not recommend retrofitting 15-passenger vans to meet school bus standards.

You also expressed concern about the costs of using school buses (such as higher vehicle costs and higher insurance, maintenance and fuel costs) rather than vans. NHTSA has recently examined this issue. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it would prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.10/15/99