ID: nht90-2.43

TYPE: Interpretation-NHTSA

DATE: May 10, 1990

FROM: Stephen P. Wood -- Acting Chief Counsel., NHTSA

TO: Phil Gramm -- U.S. Senator

TITLE: None

ATTACHMT: Attached to letter dated 0-0-0 To John Cerisano and From Phil Gramm; Also attached to letter dated 2-12-90 To Phil Gramm and From Johannah Bonewald; Also attached to letter dated January 29, 1990 To All Ford Rent-A-Car System Members and From W .A. Jacques

TEXT:

Thank you for your letter to the Department of Transportation on behalf of your constituent, Johannah Bonewald of Voskamp Motors in Hallettsville, Texas. Ms. Bonewald enclosed a bulletin from the Ford Rent-A-Car System to all System members setting out F ord's policy concerning the rental of Ford vans with more than 10 designated seating positions. Ms. Bonewald questions the basis under Federal law for Ford's policy with regard to using these vans to transport students, and asked for additional informati on about the Federal law in this area. I am pleased to have this chance to provide you with the following information.

Ford's policy described in the bulletin is that dealers should not rent vans with more than 10 seating positions to customers, if the dealer knows or has reason to know that the vehicle will be used to transport students. The bulletin also recommends tha t dealers renting these vans should obtain a signed statement from the customer to the effect that the vehicle is not being used to carry students to and from school or related events. While Ford's policy is consistent with Federal requirements and this agency's safety recommendations, rental companies are not actually required by Federal law to take the actions recommended by Ford.

The National Highway Traffic Safety Administration (NHTSA) has the authority under the National Traffic and Motor Vehicle Safety Act (the Safety Act) to issue motor vehicle safety standards that apply to new motor vehicles and items of motor vehicle equi pment. Several of our standards set forth requirements for new "school buses," which are defined as vehicles designed for carrying more than 10 persons that are sold, or introduced into interstate commerce, for purposes that include carrying students to and from school or related events., Thus, it is the vehicle's anticipated use, determined at the time of the new vehicle's first sale, that indicates whether it is a "school bus" for the purposes of the safety standards.

Section 108(a)(1)(A) of the safety Act specifies that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States"

2

any motor vehicle manufactured on or after the date any applicable safety

standard takes effect unless the vehicle conforms with all such standards. Thus, every person that manufactures a bus that it knows will have the purpose of carrying students must certify that it complies with all school bus safety standards. Similarly, if a dealer sells or offers to sell to a school district or school bus contract operator a bus that will be used as a school bus, the Safety Act makes the dealer responsible for ensuring that the vehicle it sells is certified as complying with all applic able school bus standards.

The agency has previously stated, in the enclosed December 31, 1975 Federal Register notice that accompanied the adoption of the regulatory definition of "school bus," that if a seller has reason to believe that a bus will be used for student transportat ion, the seller can clarify the intentions of the purchaser by requesting a written statement of purpose from the purchaser. If that statment indicates that the vehicle will be used for student transportation, the seller can only provide a certified scho ol bus.

Pursuant to section 108 (b) (1) of the Safety Act, however, the requirement that a vehicle comply with all applicable safety standards does not apply after the first purchase of the vehicle for purposes other than resale. In a typical rental situation, t he person offering the vehicle for rent has already purchased the vehicle for a purpose other than resale, i.e., in order to offer the vehicle to the public for rent. Thus, a dealer wishing to offer vehicles for rent for the purposes of carrying students is not required by the Vehicle Safety Act to offer vehicles that fully comply with all safety standards applicable to school buses. Further, once a vehicle has been sold and delivered to the person who plans to rent the vehicle to the public, the vehicl e is no longer considered to be new and therefore is not required to remain in compliance with all applicable safety standards.

Having said this, I would like to emphasize some additional points. First, a manufacturer, distributor, or dealer that sells a new vehicle to a rental company that the seller knows or has reason to know intends to rent it to customers for the purpose of carrying students to or from school or related events is required by Federal law to sell that rental company only a vehicle certified as complying with the school bus standards. In Ms. Bonewald's letter to you, she indicates that the schools in the area are "probably the biggest customer" Voskamp Motors has for the rental of its 15-passenger vans. Any person that knows or has reason to know of this fact must either:

a. sell Voskamp Motors only certified school buses for use in Voskamp's rental fleet, or b. obtain assurance from Voskamp Motors that the vans it purchases that are not so certified will not be rented to customers that will use them for student transportation. Second, although NHTSA does not have authority to regulate the use of vehicles as school buses, the State of Texas does have such authority, and has exercised that authority. Your constituent may wish to contact

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the State government to learn more about any State requirements applicable to

vehicles used as school buses.

Third, we strongly endorse the use of certified school buses as the vehicles rented for the purposes of transporting school children, because the certified school bus has been shown to be the safest way to transport students. Based on these safety consid erations, NHTSA endorses Ford's recommendation that its dealers rent only certified school buses for student transportation purposes.

I hope this information is helpful in responding to your constituent. I have also forwarded a copy of this correspondence to the Ford Rent-A-Car System. Please do not hesitate to contact me if you have any further questions or need some additional inform ation.

ID: nht90-2.44

TYPE: Interpretation-NHTSA

DATE: May 11, 1990

FROM: Stephen R. Darling -- C.E.T., Presvac Systems (Burlington) Limited

TO: NHTSA

TITLE: Re 49CRF575 - "Vehicle Owners Manual"

ATTACHMT: Attached to letter dated 5-31-90 from S.P. Wood to S. Nishibori (Part 575.6); Also attached to Federal Register, 49 CFR Part 575, (11-27-89 Edition), pages 48745-48749 (text omitted); Also attached to letter dated 10-1-90 from P.J. Rice to S.R. Darling (A36; Std. 567; Std. 568)

TEXT:

Upon reviewing the recent publication of "Trailer/Body Builder", I noticed the article concerning manufactures statement in owners manual for N.H.T.S.A. notification in case of vehicle defects, as covered in 49CFR575.

As a Liquid Cargo Vessel Trailer manufacturer, we acknowledge our obligations in complying with this regulation by September 1, 1990.

However, in our other area of manufacturing, namely fabricating and installing Liquid Cargo Tanks onto existing or modified truck chassis, we question our obligations.

Could you please advise us of our obligations, if any with regards to 49CFR575 and our truck mounted cargo vessels.

Thanking you in advance; we remain,

Yours very truly

ID: nht90-2.45

TYPE: INTERPRETATION-NHTSA

DATE: 05/17/90

FROM: STEPHEN P. WOOD -- NHTSA ACTING CHIEF COUNSEL

TO: DAVID R. MARTIN -- TOMOKA CORRECTIONAL INSTITUTION

TITLE: NONE

ATTACHMT: HANDWRITTEN LETTER DATED 01/01/90 (EST); FROM DAVID R. MARTIN TO NHTSA (OCC 4221)

TEXT: This responds to your letter to this agency's Public Affairs Office asking about the application of Safety Standard (FMVSS) No. 301, Fuel System Integrity, to a van used by a correctional institution to transport inmates. Your letter has been referred t o me for reply. I regret the delay in responding.

As you may know, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue safety standards for new motor vehicles and motor vehicle equipment. NHTSA issued Standard No. 301 to reduce deaths and injuries resulting from fuel spillage in crashes. The standard applies to new vans manufactured on or after September 1, 1976, that have a gross vehicle weight rating (GVWR) of 10,000 pounds or less.

Under the Vehicle Safety Act, each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. Thus, if the vans in your letter were manufactured on or after Se ptember 1, 1976, the van manufacturer was required to certify their compliance with Standard No. 301. However, even if the vans did not comply with that standard, the Act does not place any responsibility for that noncompliance on the first purchasers a nd subsequent owners of the vans. Since some states do require that vehicles used for certain purposes comply with our standards, you may wish to address your question to appropriate State authorities in Tallahassee.

We regret we cannot provide the testing you seek. NHTSA obtains and tests new vehicles for compliance with FMVSS No. 301. However, since the standard applies only to new vehicles, NHTSA does not conduct compliance tests on vehicles that have already be en sold to a consumer. The agency also cannot test every new type or model of vehicle, since it would be impracticable to do so.

For your information, Safety Standard No. 217 specifies emergency exit requirements for vans designed to carry 11 or more persons. However, the standard excludes vans purchased for transporting prison inmates. This exclusion resulted from a determinati on that the standard's requirements were incompatible with the necessity that buses used for transporting inmates be able to confine their occupants in transit. I have enclosed a copy of Standard No. 217 for your information.

You also asked whether we require roll bars on vehicles used to transport 12, 13 or 14 passengers. The answer is no. However, NHTSA does have a standard for roof crush protection (Standard No. 216) which requires the roof over the front seating area of cars to meet certain strength requirements. NHTSA has proposed to extend the standard to light trucks and buses (GVWR of 10,000 pounds or less). I have enclosed a copy of that proposal for your information.

Sincerely,

ENCLOSURE

ID: nht90-2.46

TYPE: Interpretation-NHTSA

DATE: May 17, 1990

FROM: Ron Boucher -- Energy Savings System

TO: Miss Carnes -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 7-27-90 to R. Boucher from P. J. Rice; (A35; VSA 102(4)); also attached to letter dated 5-29-90 to NHTSA Office of Chief Counsel from R. Boucher; (OCC 4837) TEXT:

Regarding our conversation this morning, you requested me to fax you this information about the item that I'm wanting to know and be sure that the product is OK to use for vehicle breakdowns and also for bicycling identification.

If you need more information, please call me.

Just want to be certain that I am in compliance with the laws of the land.

Miss Carnes, thanks again for your help in this matter.

ID: nht90-2.47

TYPE: Interpretation-NHTSA

DATE: May 18, 1990

FROM: David W. Holscher -- General Sales Manager, Dreyer & Reinbold, Inc.

TO: Taylor Vinson -- Legal Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8-31-90 from P.J. Rice to D. Holscher (Std. 108; VSA 108(a)(2); A36)

TEXT:

I am writing to you from Dreyer & Reinbold Infiniti in Indianapolis, IN. I am General Sales Manager here and one of our customers has requested a factory design rear spoiler on their new Infiniti. The rear spoiler contains a 3rd brake light which will i lluminate during brake application. This would be an addition to the existing rear window brake light. The rear window brake light is not removable because of damage to the interior of the car which would cost a large amount of money to repair.

I need something in writing in regard to standard 108 to allow me to understand that by installing this spoiler, I am not violating any federal NHTSA regulations. I had talked on the phone to one of your people and they suggested that I write you for fi nal verification of this fact.

Your help is greatly appreciated and you can contact me at this phone number 317-573-0222. Enclosed please find an addressed stamped envelope.

ID: nht90-2.48

TYPE: Interpretation-NHTSA

DATE: May 19, 1990

FROM: Stephen P. Wood -- Acting Chief Counsel., NHTSA

TO: Keith D. Kroll -- Vice President, Engineering., Hehr International, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 2-22-90 To Stephen P. Wood and From Keith D. Kroll; (OCC 4481); Also attached to letter dated 1-26-90 To John G. Sims and From Stephen P. Wood

TEXT:

This is in response to your request for an interpretation of S5.5.1 and S5.5.2 of Standard No. 217; Bus Window Retention and Release (49 CFR S571.217). More specifically, I understand your request to refer to buses that are not school buses and that have a gross vehicle weight rating of more than 10,000 pounds. For such buses, S5.5.1 of Standard No. 217 provides that: "... each emergency door shall have the designation 'Emergency Door' or 'Emergency Exit' ... followed by concise operating instructions d escribing each motion necessary to unlatch and open the exit,located within 6 inches of the release mechanism. S5.5.2 requires that emergency exit "markings" be visible to occupants in specified locations, under lighting and occupant visual acuity condit ions set forth in S5.5.2.

You suggested that S5.5.1 requires only the operating instructions, and not the emergency exit designation, to be located within 6 inches of the release mechanism. Similarly, you suggested that the legibility requirements applicable to emergency exit "ma rkings" per S5.5.2 refer only to the emergency exit designation, and not to the operating instructions for that emergency exit.

We disagree with your suggested interpretation. I have recently discussed NHTSA's official interpretation of these provisions in Standard No. 217 in a January 26, 1990 letter to Mr. John G. Sims. A copy of that letter is enclosed for your information.

Please contact David Greenburg of this office at (202) 366-2992 if you have any further questions or would like some additional information concerning this subject.

ID: nht92-4.35

DATE: August 17, 1992

FROM: Spencer A. Darby -- Vice President - Engineering, Sate-lite Mfg. Co.

TO: Legal Counsel - FMVSS 125 -- NHTSA

COPYEE: Larry Michelson

TITLE: None

ATTACHMT: Attached to letter dated 10/28/92 from Paul Jackson Rice to Spencer A. Darby (A40; Std. 125)

TEXT:

IN THE "S1. SCOPE" AND "S3. APPLICATION" SECTIONS OF FMVSS 125, REFERENCE IS MADE TO "...DEVICES, WITHOUT SELF-CONTAINED ENERGY SOURCES,...".

I AM RESPECTFULLY REQUESTING AN AGENCY INTERPRETATION OF THIS PHRASEOLOGY IN REGARDS TO ONE PUTTING FLASHING, BATTERY OPERATED LIGHT SOURCES BETWEEN THE REFLEX REFLECTORS PORTION OF AN OTHERWISE COMPLYING WARNING DEVICE. WOULD THIS ALTERED DEVICE BE IN COMPLIANCE WITH THE FMVSS 125 STANDARD IF THE LIGHT SOURCES WERE OPERATED AFTER DARK? OR, PHRASED ANOTHER WAY, DOES FMVSS 125 APPLY TO AN OTHERWISE COMPLYING DEVICE THAT HAS FLASHING LIGHTS IN IT, AND, IF NOT, WOULD A VEHICLE WHICH IS REQUIRED TO HAVE THE THREE 125 WARNING TRIANGLES HAVE TO HAVE THREE NON-LIGHTED COMPLYING TRIANGLES SET OUT AS WELL?

IT IS OUR OPINION THAT FLASHING LIGHTS IN AN OTHERWISE COMPLYING EMERGENCY WARNING TRIANGLE ENHANCES THE ATTENTION GRABBING CAPABILITY OF THE DEVICE AFTER DARK.

PLEASE FEEL FREE TO TELEPHONE THE WRITER AT ANY TIME, IF HE COULD BE OF FURTHER ASSISTANCE IN CLARIFYING THIS REQUEST FOR AN INTERPRETATION.

ID: nht92-4.36

DATE: August 16, 1992

FROM: Robert N. Moore -- No. 203048, Iowa State Penitentiary

TO: Mr. Curry

TITLE: Re: Safety Act; 15 U.S.C., Section 1381 et seq.; F.M.V.S.S. #208

ATTACHMT: Attached to letter dated 9/28/92 from Paul Jackson Rice to Robert N. Moore (A39; Std. 208)

TEXT:

I'm pleased to make your acquaintance.

This is a request for information, in the form of an official statement from your agency, concerning an interpretation of the above-caption statute and Safety Standard.

Before going further I should inform you that my prison I.D. No., given above, must follow my name on the face of your reply envelope.

The circumstances surrounding this request is a lawsuit I am prosecuting in the United States District Court for the Central District of Illinois. That court is in Peoria, and the suit is captioned as MOORE V. GREEN, CV89-4129.

The factual basis of this action concerns my transportation in a law enforcement vehicle which was a regular, passenger van, with modifications to change it into a "paddy wagon" type of vehicle. The defendants admit that the device did not contain any type of occupant restraint system for my safety. I did sustain injury in the vehicle.

I have based one cause of action upon an alleged violation of the Safety Act and F.M.V.S.S. #208. The suit is presently at the discovery stage; and upon my receipt of answers to Interrogatory questions, both parties have informed the Magistrate of the intention to file motions for summary judgment. I am assuming that the defendants will rely as heavily upon the Interrogatory answers as I plan to do.

It thus appears that our first battle will focus upon the question of whether or not I have been bestowed the equivalent of a right or privilege under the Act to have been provided with a seat belt. And following that question, is that right enforceable under the remedial authority of 42 U.S.C., Section 1983, which is the statute I am using to obtain compensation.

Of course I have no idea of the research capabilities of the Asst. State's Attorney who is defending, but I do know that I can find no legal authority, at least in the cases, which addresses the specific question of whether the Act does in fact create a right to have a restraint system; and the related question of whether or not Congress has either allowed, or foreclosed a remedy under Section 1983 to enforce that right.

It is at this point where I think everyone involved would benefit from an expert opinion.

I'm sure you are probably aware of the policy of the federal judiciary to defer to, or to at least consult a government agency's own interpretation of the relevant statutes and regulations in these types of cases.

During my research I've discovered several recent opinions where one of the parties wrote an agency, exactly as I am doing here, for opinions or interpretations of the law bearing upon the issues of those particular actions. The written replies were submitted to those courts and were well received by them. I believe your written opinion could also guide our court when I will be required to conduct an agency interpretation analysis in this case.

In case you are disposed towards providing something to clarify the issue in this case, I can offer the following examples as reference points.

The opinion of GOLDEN STATE TRANSIT CORP. V. CITY OF LOS ANGELES, 110 S.CT. 444, probably frames the entire problem much better than I can explain it.

From the viewpoint of that case, I suppose I could just ask two specific questions to make this an easier task for you:

1. Does the Safety Act, and F.M.V.S.S. #208, create a "binding obligation", as opposed to merely expressing a "congressional preference" as to the inclusion of seat belts in motor vehicles?

2. Do any provisions of the Act, or any regulations show that Congress specifically foreclosed a remedy under Section 1983?

I await your reply.

ID: nht92-4.37

DATE: 08/14/92

FROM: PATTI AUPPERLEE

TO: DEE FUJIDA -- OFFICE OF CHIEF COUNSEL, NHTSA

ATTACHMT: ATTACHED TO LETTER DATED 10-28-92 FROM PAUL JACKSON RICE TO PATTI AUPPERLEE (STD. 213; A40)

TEXT: My name is Patti Aupperlee. My business partner, Beth Wiswell, and I have invented a product for childrens car seats. We would like to manufacture them and then sell them retail. We want to comply with all government regulations regarding products for front facing car seats for children.

Our product name is COOL COVER and has a patent pending number of 07/684,783. This product is not the same as the current covers on the market. An example is the Diplomat Juvenile Corporation makes an infant car seat cover which is a liner for use when the child is in the car seat and it leaves several areas of the car seat exposed to direct sunlight and heat when the car seat is in a parked and empty car. COOL COVER completely covers the car seat when the child is not in the car seat and it is exposed to direct sunlight. The cover absorbs the heat that builds up in a parked car. The car seat will not be burning hot when it is time to travel with the child. The product also comes with its own specially designed pouch that turns into a comfortable pillow for the childs head. The pillow also acts as a storage area for the cover. The pillow does not interfere with the safety purpose of the car seat, or any of its straps or buckles. The COOL COVER is unique in that it significantly reduces the heat build up on the car seat in a parked car.

I received your name from Dick Jasinski at (202) 366-5298. The Auto Safety Hotline recommended that I speak with him. He mentioned that we need to make sure we are following governmental standards on flame retardants and any intereferance of operation among others that your office would give us the necessary information of standards. I have received a copy of FEDERAL MOTOR VEHICLE SAFETY STANDARD NO. 213.

I am enclosing a description of the product, pictures, the materials used, and a sample of those materials. Please advise me of the regulations that apply to our product.

The COOL COVER was created out of concern for the comfort of all children who must ride in a HOT car seat. We are mom's who never thought a car seat could be "dangerous" until one of our children suffered a burn from the contact with a buckle after the car seat had been exposed to the sun in a parked car.

I can be contacted at (407) 478-5850. My address is 5961 St. Barbara St. West Palm Beach, Florida 33415. Thank you for your attention in this matter.

ATTACHMENT OMITTED.)

ID: nht92-4.38

DATE: August 12, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Tim Flagstad

COPYEE: Joan Moniz

TITLE: None

ATTACHMT: Attached to letter (fax) dated 7/24/92 from Tim Flagstad to Paul J. Rice (OCC 7574)

TEXT:

This responds to your FAX of July 24, 1992, seeking clarification of our letter to you of July 20.

This matter concerns the importation of a 1981 Kenworth truck from Canada that was manufactured in that country. The truck entered pursuant to the declaration that the vehicle was manufactured to conform to all applicable Federal motor vehicle safety standards, and bore a certification label to that effect. The current owner of the truck says that it bears no U.S. certification label. Our earlier letter informed you that entry under the conformance and certification provisions was therefore erroneous, and that the truck should have been imported under the new provisions for importing nonconforming motor vehicles that became effective on the day of importation.

Your letter of July 24 states that a certification label was attached at the time of importation, and you have asked "As the Certification Label was on the truck at the time it came through Customs, how would this affect the entry status of this vehicle?"

Assuming that the truck bore a certification label, the question is whether the label certified compliance to the U.S. or Canadian Federal motor vehicle safety standards. If the manufacturer certified compliance to the Canadian standards, then my previous advice remains in effect: the entry of this truck as a vehicle conforming, and certified as conforming, to U.S. safety standards was erroneous.

If, on the other hand, the manufacturer certified compliance to the U.S. standards, the truck was properly entered.

However, it appears more likely than not that such certification as may have been affixed was to the Canadian standards. We understand that the truck lacked equipment necessary for conformance to Standard No. 121, "Air Brake Systems", and that its VIN did not consist of 17 characters. These were requirements of the U.S., but not the Canadian, Federal motor vehicle safety standards at the time the truck was manufactured.

The apparently erroneous admission by the U.S. Customs service is understandable. Canada permits certification either in the form of a "National Safety Mark" (maple leaf) or a statement of compliance with "Federal motor vehicle safety standards", the identical phrase used in U.S. certification labels. When a Canadian manufacturer employs this certification statement, a

closer examination of the certification label is necessary. If GAWR and GVWR ratings are expressed in pounds, the certification is to the U.S. standards; if expressed in kilograms, the certification covers the requirements of Canada.