ID: 2881o

Mr. Terry E. Quinn
Corporate Director of Quality
Hehr International, Inc.
PO Box 39160
Los Angeles, CA 90039-0160

Dear Mr. Quinn:

This responds to your letter of last year concerning Standard No. 205, Glazing Materials. I regret the delay in our response. You explained that your company, Hehr International, is a prime glazing material manufacturer that tempers glazing material used in vehicular windows produced by your company and other companies. You stated that a prospective customer for your tempered glass does not wish to have your trademark appear on the glazing etch of its windows since it is a competitor of yours. You asked whether a prime manufacturer may sell its tempered glass without its distinctive designation or trademark. As explained below, Standard No. 205 requires that a manufacturer's distinctive designation appear on the glass. However, if the glass in question is marked with the prime manufacturer's DOT code mark, the designation marked on the glass may be the designation of the company that sells the glass, instead of the prime manufacturer.

Section S6 of Standard No. 205 (49 CFR 571.205) sets forth the certification and marking requirements for glazing materials. Paragraphs S6.1 and S6.2 of the standard specify that each "prime glazing material manufacturer" shall mark glazing materials manufactured by him in accordance with Section 6 of the American National Standard "Safety Code for Glazing Materials for Glazing Motor Vehicles Operating on Land Highways," Z-26.1 - 1977, January 26, 1977 as supplemented by Z26.1a July 3, 1980 (ANS Z-26). Paragraph S6.1 defines a "prime glazing material manufacturer" as one who fabricates, laminates, or tempers the glazing material. Your company is therefore a "prime glazing material manufacturer" of all glazing material that it tempers, and so you are subject to these marking requirements.

One of the requirements of S6 of ANS Z-26 is that a manufacturer mark its glazing with its own "distinctive designation or trademark." In addition to the marking requirements of S6 of ANS Z-26, S6.1 of Standard No. 205 requires prime glazing material manufacturers to mark each piece of glazing they temper with an "AS" number, indicating that the glazing meets all of the performance requirements set for that glazing item number. S6.2 of Standard No. 205 further requires a prime glazing manufacturer to mark each item of glazing material designed to be used in a specific vehicle with the symbol "DOT" and a manufacturer's code mark assigned by this agency.

Standard No. 205, through its incorporation of ANS Z-26, requires that all glazing be marked with a distinctive designation or trademark by the prime manufacturer. Therefore, your company cannot do what you asked to do in your letter; that is, sell glazing without any distinctive designation or trademark appearing on the glazing. However, NHTSA has previously concluded that the designation or trademark on the glazing need not be that of the prime glazing material manufacturer, if the glazing is marked with the prime manufacturer's DOT code mark. This is because NHTSA can easily and accurately identify the prime manufacturer from the DOT code mark, regardless of the distinctive designation or trademark that appears on the glazing. The agency needs to be able to identify the prime glazing material manufacturer, since that is the party responsible for any defect or noncompliance recall campaigns.

When the agency can use the DOT code mark to identify the prime manufacturer, the agency does not need the distinctive designation or trademark appearing on the glazing to also identify the prime manufacturer. When a prime manufacturer sells glazing to another glazing company that sells the glazing to the public, the company selling the glazing to the public has a legitimate competitive interest in having its logo appear on that glazing. In recognition of these factors, we said in an October 16, 1986 letter to Mr. Edward T. Fennell, Jr. (copy enclosed) that Standard No. 205 permits a prime glazing material manufacturer to mark windshields with the logo of the company that was buying windshields from the prime manufacturer, with the permission of the purchasing company.

Your company would be permitted to do the same for the glazing you are selling to a competitor, if your company's assigned DOT code mark appears on the glazing you are selling. If your company's assigned code mark does not appear on that glazing, or if the glazing company that is purchasing the glazing from you will not give you permission to use its logo, Standard No. 205 would require you to mark your company's distinctive designation or trademark on the glazing.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure ref:205 d:5/31/88

ID: 2882o

Mr. Frank V. Tanzella
Tek Tron, Inc.
10R Rainbow Terrace Unit E
Danvers, MA 01923

Dear Mr. Tanzella:

This responds to your letter of April 5, 1988, concerning the installation of credit card mobile telephones into taxi cabs that already have been sold to the first purchaser. You noted that you may have to cut into the back of the front seat in order to provide clearance for the phone. You asked what safety regulations would apply to this situation and whether any additional testing would be necessary.

Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A); the Safety Act) provides that: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard ... For purposes of this paragraph, the term 'motor vehicle repair business' means any person who holds himself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation."

Standard No. 207, Seating Systems (49 CFR 571.207; copy enclosed) sets forth minimum performance requirements for the seating systems installed in new passenger cars, such as the taxi cabs you plan to modify. Assuming that your company would be a "motor vehicle repair business" for the purposes of this contract, this statutory provision prohibits you from knowingly making any modifications that would render inoperative the taxis' compliance with any safety standards. You should be aware that by adding the telephone you will be adding weight to the seat. This change in weight may effect the general performance requirements in S4.2. Nevertheless, the "render inoperative" provision in the Safety Act does not require your company to test vehicles after installing the mobile telephone, to ensure that the vehicles continue to comply with Standard No. 207. Instead, the "render inoperative" provision in the Safety Act requires your company to carefully compare your planned installation instructions with the requirements of Standard No. 207, to determine if installing the mobile telephones in accordance with your planned installation procedures would result in the vehicles no longer complying with Standard No. 207. If it would, you will have to devise some alternative means of installing the mobile telephones in the taxis. If your planned installation procedures do not render inoperative the taxis' compliance with Standard No. 207, you may follow those procedures without violating any provisions of the Safety Act.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:VSA#108#207 d:7/18/88

ID: 2883o

Gary Evans, President
Westex Automotive Corporation
40880 Encyclopedia Circle
Fremont, CA 94538

Dear Mr. Evans:

This is a response to your letter of February 26, 1988, where you asked the National Highway Traffic Safety Administration (NHTSA) whether a product you wish to import and sell in the United States "complies with any standards which may affect it.". You describe the product as a warning triangle that is designed to be attached to the side window of a car. You tell us that this side-mounted triangle is about 20% smaller than the warning device specified in this agency's regulations in Standard 125, Warning Devices. The answer to your question is that the device you described would not comply with Standard 125.

Standard 125 sets uniform specifications for warning devices. Paragraph S3 of Standard 125 states that the standard "applies to devices, without self-contained energy sources, that are designed to be carried in motor vehicles, and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle." By its own terms, then, Standard 125 applies to all warning devices that are not designed to be permanently affixed to the vehicle. You are mistaken in suggesting that because the device attaches to the vehicle, Standard 125 is inapplicable. As I understand your description, the device is not "permanently affixed" to the vehicle. Rather, it is carried in the vehicle, and the vehicle operator may attach or remove the device as necessary. Therefore, this device is subject to the requirements of Standard 125.

According to your letter, this device fails to comply with the minimum size requirements set forth in paragraph S5.2.2 of Standard 125. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall ... import into the United States any ... item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect unless it is in conformity with such standard..." Standard 125 took effect on January 1, 1974. Thus, Federal law prohibits you from importing any of the devices described in your letter that were manufactured on or after January 1, 1974. I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ref:125 d:7/18/88

ID: 2884o

Robert R. Keatinge, Esq.
Durham & Associates, P.C.
Suite 1750
950 17th Street
Denver, CO 80202

Dear Mr. Keatinge:

This is a response to your letter of December 4, 1987, asking this agency to clarify your understanding of 49 CFR 571.7(e). That section reads in part as follows:

Combining new and used components. When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured ...unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle.

You referred to my August 11, 1987 letter to Mr. Ernest Farmer, and expressed concern that my having discussed only one aspect of 571.7(e) in that letter has led to some confusion. My letter to Mr. Farmer states that "a modified school bus or truck is not considered a 'new' vehicle if, at a minimum, the engine, transmission, and drive axle(s) are not new and at least two of these three listed components are taken from the same used vehicle." You stated that while my statement is "correct," my response did not address the first clause of this provision: "When a new cab is used in the assembly of a truck..." You asserted that, "a bus should not be considered 'new' unless a new body is attached to the chassis." Your assertion is correct with respect to 571.7(e), but there is another regulation that specifies a vehicle is "new" if an old body is combined with a new chassis.

By its own terms, 571.7(e) applies only in situations where a new body is combined with either (1) mixed new and used chassis components, or (2) used components from different vehicles. You were correct, then, in asserting that 571.7(e) applies only to situations involving a new body. For the purposes of the Farmer letter, it was understood between Mr. Farmer and a member of my staff that the bus bodies in question were new, so that letter did not purport to address the question of combining an old bus body with new and or/used chassis components. Many of our prior interpretations have stated that a person who adds a new or used body to a new chassis to produce a school bus is considered the manufacturer of a new school bus, and must certify that the new bus conforms with all applicable safety standards, just as every other school bus manufacturer must. In this case, the new chassis is an incomplete vehicle. "Incomplete vehicle" is defined in 49 CFR 568.3 as:

an assemblage consisting, as a minimum, of a frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

When a new bus chassis is used to produce a vehicle, the person who adds a body - even an old body - is a final-stage manufacturer, within the meaning of 49 CFR 568.3. Final-stage manufacturers are required to certify that the completed vehicle conforms with all applicable Federal Motor Vehicle Safety Standards in effect on the date of manufacture. The date of manufacture for these buses cannot be earlier than the date on which the chassis manufacturer completed its work on the chassis and cannot be later than the date the final-stage manufacturer completed its manufacturing operations. See 49 CFR 567.5, Requirements for Manufacturers of Vehicles Manufactured in Two or More Stages.

Note that neither 571.7(e) nor Part 568 would require a person to certify that a school bus complies with all applicable safety standards, if that person merely rebuilds or replaces an engine, drive axle, or transmission in a bus, or if that person places a used bus body on a used chassis.

I hope you find this information helpful.

Sincerely,

Erika Z. Jones Chief Counsel

ref:57l#567#568 d:5/2/88

ID: 2885o

Mr. R.A. Bynum
Associate Director, Pupil Transportation Service
Virginia Department of Education
P.O. Box 60
Richmond, VA 23216-2060

Dear Mr. Bynum:

This is a response to your letter of January 25, 1988, where you asked this agency to "provide (your Department) with the precise language of the various federal laws and regulations which describes the application and enforcement of the April 1, 1977 school vehicle regulations." You state that Virginia has "agreed to enforce" the Federal school bus regulations by requiring that "all school activity buses purchased, leased or contracted for after January 1, 1985" comply with Federal school bus regulations.

You state that according to your maintenance records for vehicles in the school bus fleet, some "Detroit Line" vans do not comply with Federal regulations, and Virginia may wish to take some action (1) to remove certain "noncomplying" vehicles from the school bus fleet, and (2) to warn dealers and manufacturers against selling noncomplying vehicles to Virginia school divisions. You state that you are concerned with "school activity vehicles which were designed for more than ten passenger capacity," and say that the State of Virginia may order some school districts to remove certain vehicles from service, because they appear not to comply with Federal safety standards for school buses.

As I read your letter and the materials you submit with it, your principal concern seems to be with the compliance requirements for passenger vans with at least 11 designated seating positions, and used to transport students to and from school-related events. Let me begin by explaining that under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified either as a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle (1) designed to carry a driver and nine or fewer passengers, (in other words, with not more than 10 designated seating positions), and (2) either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers. (In other words, a bus has at least 11 designated seating positions.) If that vehicle with at least 11 designated seating positions also is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act) and regulations issued under it, define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events. Please note that a vehicle with at least ll designated seating positions intended for use in transporting students to school-related activities is a school bus even if the vehicle is not used to transport students to and from school.

Please note further that NHTSA uses its definition of school bus in regulating the manufacture and sale of new vehicles. A new vehicle that meets the definition of a school bus must meet Federal safety standards for school buses. A school bus manufacturer must certify that its vehicles meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. In your letter, you state that Virginia may warn some dealers and manufacturers against selling noncomplying vehicles to your school districts. If a dealer has in its inventory, a motor vehicle with at least 11 designated seating positions, and if that vehicle is not certified as complying with all Federal safety standards applicable to a school bus, then in all likelihood, the dealer has violated the Vehicle Safety Act if he sells or has sold a noncomplying vehicle to a Virginia school district.

This is because NHTSA has maintained a long-standing position that if a dealer sells an MPV or bus capable of being converted and used as a school bus to a school or a school bus contract operator, that dealer is responsible for certifying the vehicle's compliance with school bus standards. (40 FR 40854, September 4, 1975.) The agency has placed these special responsibilities with the dealer because the dealer frequently is the person in the distribution chain with the best knowledge of how a buyer intends to use a vehicle. In a case where the dealer is uncertain of the buyer's intent, the agency has suggested that the dealer request a written statement of purpose from the buyer. (40 FR 60033, 60034, December 31, 1975.) Of course, a manufacturer who sells a noncomplying vehicle to a school district also violates the Vehicle Safety Act, and is subject to a civil penalty of $1000 for each violation of the Act or regulations issued under it.

Generally under the Vehicle Safety Act, a manufacturer's or seller's certification responsibilities apply up to the vehicle's first purchase in good faith for purposes other than resale (in other words, up to the first retail sale of the vehicle). After that first retail sale, Federal responsibilities change. Federal restrictions concerning used vehicles are set out in 108(a)(2)(A) of the Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section states that: No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard...

Section 108 means that none of the identified persons or businesses may remove, disconnect, or degrade the performance of safety equipment or designs that are installed in a school bus in compliance with an applicable Federal safety standard. Note that this prohibition in the Federal law does not prevent the vehicle owner (e.g., a local school system) from itself making modifications to its own vehicles. Again, as with any violation of 108 or regulations issued under it, this agency may seek civil penalties of $1000 per violation.

In your letter, you express concern with the failure of some Virginia school districts either to purchase school buses that comply with Federal safety standards, or to maintain the districts' existing school bus fleet. Please be aware that there is no Federal requirement that school districts either purchase complying vehicles for transporting school students, maintain a bus fleet so that the vehicles continue to comply with Federal safety standards, or otherwise bring a vehicle into compliance with Federal school bus standards. This agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. These matters are within the authority of the individual State. Under a Federal statute called the Highway Safety Act, NHTSA has issued guidelines that cover a wide range of subjects relative to school bus identification, operation, and maintenance (23 CFR Part 1204, Highway Safety Program Standard No. 17). NHTSA may recommend, but does not require, that an individual State adopt all or part of these guidelines. Therefore, the State of Virginia, not the Federal Government, would impose limitations on the purchase, use, and maintenance of vehicles by a school district, and would determine whether to order a district to remove noncomplying vehicles from its school bus fleet.

You ask for "the precise language" of Federal laws and regulations that apply to school buses. Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards. The following is a list of the Federal motor vehicle safety standards that include requirements for new school buses:

Standards No. 101 through 104 (49 CFR 571.101 - 571.104) Standard No. 105 (School buses with hydraulic service brake systems) Standards No. 106 through 108 Standards No. 111 through 113 Standard No. 115 Standard 116 (School buses with hydraulic brake systems) Standard 120 Standard No. 121 (School buses with air brake systems) Standard No. 124 Standards No. 201, 203, and 204 (School buses with a gross vehicle weight rating [GVWR] of 10,000 pounds or less) Standards No. 205, 207, 208, and 210 Standard No. 212 (School buses with a GVWR of 10,000 pounds or less) Standard No. 217 Standard No. 219 (School buses with a GVWR of 10,000 pounds or less) Standard No. 220 Standard No. 221 (School buses with a GVWR greater than 10,000 pounds) Standards No. 222, 301, 302.

You may find a copy of 49 CFR at a Federal Depository Library in your State. I enclose a list of those Libraries in Virginia. If you so choose, you may purchase a copy of Title 49 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238. The principal Federal statute governing vehicle safety regulation is the Vehicle Safety Act (15 United States Code 1381 et seq.). You may obtain a copy of this and other Federal laws from GPO.

In an undated memorandum you sent to Division Superintendents, you refer to a school bus fleet review, and state that this review includes "cars, vans, activity buses, etc. which are used primarily to transport school pupils." Some of these vehicles were not subject to Federal school bus safety standards, because the vehicles do not fit in the school bus vehicle classification. I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and I encourage your school districts to give their most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

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

Sincerely,

Erika Z. Jones Chief Counsel

/ Senator John W. Warner 805 Federal Building 200 Granby Mall Norfolk, VA 23510 ref:VSA#57l d:5/27/88

ID: 2886o

Mr. Garry Gallagher
Vice President
Metzeler Motorcycle Tire
Agent Gregg, Inc.
4520 - 107th S. W.
Everett, Washington 98204

Dear Mr. Gallagher:

I am writing in response to your letter of February 11, 1988 that requested "written confirmation and approval" to add the word "reinforced" to the sidewall of the Metzeler Motorcyle ME88 Marathon model motorcycle tire. As discussed below, it is our opinion that Federal Motor Vehicle Safety Standard 119 does not prohibit the addition of the word "reinforced."

It is important to note that the National Highway Traffic Safety Administration does not approve motor vehicles or motor vehicle equipment, nor do we endorse commercial products. Instead, the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381 et seq.) establishes a "self certification" process under which each manufacturer is required to certify that its products meet all applicable safety standards. The Act prohibits the manufacture or sale of a noncomplying product.

Standard No. 119; New pneumatic tires for vehicles other than passenger cars establishes performance and marking requirements for tires for use on multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles. Paragraph S6.5 of Standard No. 119 requires that certain information be labeled on the sidewalls of each tire subject to this standard. The agency has frequently stated in past interpretations that the purpose of these labeling requirements is to provide the consumer, in a clear and straightforward manner, with technical information necessary for the safe use of the tires. Standard No. 119 permits tire manufacturers to label additional information on the sidewall on the tires, provided that the additional information does not obscure or confuse the meaning of the required information, or otherwise defeat its purpose. Assuming that the addition of the word "reinforced" is not made in such a way that it obscures or confuses the meaning of the required information, Standard No. 119 does not prohibit the addition of the word "reinforced" to the motorcycle tire sidewall. I hope the information provided above will be useful to you and to Metzeler Motorcycle Tire. If there are any further questions or if you need more information, please do not hesitate to write to me.

Sincerely,

Erika Z. Jones Chief Counsel

ref:119 d:5/31/88

ID: 2889o

Mr. R. C. Rost
President
Minnesota Body & Equipment Co.
7380 Highway 101
Shakopee, MN 55379-3097

Dear Mr. Rost:

This is in reply to your letter of March 18, 1988, bringing our attention to a conflict between a Federal motor vehicle safety standard applicable to school bus lighting, and State requirements applicable to these vehicles.

You have informed us that at least two States, Iowa and Wisconsin, prohibit Head Start buses in effect from being identified as a school bus, either by words or by color, and from having the warning lamp system required by Standard No. l08. Paragraph S4.1.4 of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment requires each school bus to be equipped with a four or eight lamp signal system, in addition to other required lighting equipment. You also indicate that some regional Headstart authorities reportedly do not recognize the interpretations and regulations of this agency regarding school bus safety. You have asked that Head Start buses be exempted from the warning law requirement if a color other than school bus yellow is used.

In 1974, Congress amended the National Traffic and Motor Vehicle Safety Act to require the issuance of certain Federal motor vehicle safety standards for school buses. The amendments defined "school bus" as:

a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." (15 U.S.C. 1391(14)) (Emphasis added.)

On December 29, 1977, the then Chief Counsel of this agency issued an opinion under 15 U.S.C. 1391(14) that Head Start facilities are considered preprimary schools and that buses transporting children to and from those schools are defined as school buses under Federal law and accordingly are subject to the Federal school bus safety standards. Specifically, the letter stated: The NHTSA interprets the term "school" broadly, because the agency believes that this is the intent of the Motor Vehicle and School Bus Safety Amendments of 1974 (Pub. L. 93-492) which directed the creation of the school bus safety standards. Since this head start program is basically an educational program for preprimary students, the agency had determined that those facilities are schools and buses transporting children to and from them must comply with the Federal school bus safety requirements if they transport 10 or more passengers.

I am sorry to inform you that we cannot grant your request for an exemption. The 1977 opinion of this agency regarding Congress' 1974 mandate remains operative. The Federal motor vehicle safety standards applicable to buses defined under Federal law as school buses continue to apply in all respects to buses used to carry preprimary school pupils such as those in the Head Start program. Any manufacturer who omits the warning lamp system required by paragraph S4.1.4 of Standard No. 108, or who delivers a bus with the warning lamp system inoperative, is in violation of the National Traffic and Motor Vehicle Safety Act, and subject to civil penalties. The manufacturer is also subject to the provisions of the Act for notification and remedy of the noncompliance with Standard No. l08.

The effect of the preemption provision in section 103(d) of the Act (15U.S.C. 1392(d)) is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that State standard or requirement is identical to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light requirement as a "higher standard of performance." Thus, regardless of how a State defines "school bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with a school bus warning system that is designed and wired as required by paragraph S4.l.4 of Standard No. l08. Although each State has the authority to establish laws for the use of vehicles on its roads, those State laws may not override Federal laws. The effect of Federal preemption is that the school bus warning system must continue to operate as required by paragraph S4.l.4(b)(ii), and a State may not directly or indirectly require tampering with that equipment in order to comply with State usage laws.

We are providing copies of this letter to the officials in Iowa and Wisconsin mentioned in your letter.

Sincerely,

Erika Z. Jones Chief Counsel

cc: J.P. Golvinaux Dwight R. Carlson Frank Potts Donald Schneider

ref:l08 d:8/26/88

ID: 2890o

Glenn L. Duncan, Esq.
Thorne, Grodnik & Ransel
228 West High Street
Elkhart, IN 46516-3176

Dear Mr. Duncan:

This responds to your letter concerning situations in which seats tested for compliance with Safety Standard No. 207, Seating Systems, bend or deform when subjected to the required test forces specified in the standard. You asked whether NHTSA would consider a seat as passing Standard No. 207 if the seat "gives," but does not separate or break free from the floor. I regret the delay in responding.

The requirements with which you are concerned are set forth in section S4.2 of Standard No. 207. That section provides in pertinent part:

S4.2 General performance requirements. When tested in accordance with S5., each occupant seat, other than a side-facing seat or a passenger seat on a bus, shall withstand the following forces.

(a) In any position to which it can be adjusted--20 times the weight on the seat applied in a forward longitudinal direction;

(b) In any position to which it can be adjusted--20 times the weight on the seat applied in a rearward longitudinal direction;

* * * * *

(d) In its rearmost position--a force that produces a 3,300 inch-pound moment about the seating reference point for each designated seating position that the seat provides, applied to the upper cross-member of the seat back or the upper seat back, in a rearward longitudinal direction for forward-facing seats and in a forward longitudinal direction for rearward-facing seats.

The agency answered similar questions in letters dated April 28, 1977 and August 30, 1979 to Mr. Gordon P. Cress and to Mr.Robert Wahls, respectively. (Copies enclosed.) In these letters, the agency stated that NHTSA allows some deformation of the seats during the force test, provided that "structural integrity of the seats is maintained." The structural integrity of a seat is determined by the extent to which permanent deformation or separation of seat components and/or seat to floor attachments result from the applied test forces. Examples of possible noncompliances include the following occurring during the application of a forward or rearward load:

(a) the seat frame releases from its adjusted position;

(b) the seat frame or seat adjusters detach from the test vehicle floorpan;

(c) the seat frame detaches from the seat adjuster mechanism;

(d) the seat adjuster mechanism separates; or,

(e) the hinged seat restraining device disengages, or detaches from the seat frame.

Other examples of possible noncompliances are the rear seat back or cushion frame detaching from the test vehicle structure during the application of the specified load, or the folding seat back restraining device releasing from its preset position during application of a forward load.

Further, as stated in the two enclosed letters, it has been the longstanding position of the agency that seats which displace to an extent that NHTSA determines occupant safety is threatened would not be in compliance with Standard No. 207.

I hope this information is helpful. Please contact my office if you have further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:207 d:8/26/88

ID: 2891o

Mr. J. Mark Smith
Lynco Products
815 Kelli Drive
Yuba City, CA 95991

Dear Mr. Smith:

This responds to your letter concerning the application of Federal safety standards to your manufacture of a "storage console-armrest." I regret the delay in responding. The illustration you included in your letter shows that the console apparatus is designed to be placed on a bench seat and is not attached in any manner to the seat structure. The console-armrest has a wood frame, is entirely covered with fabric, and has a hinged, padded top which can be flipped open for access to the storage area.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to a removable console-armrest sold directly to a consumer as an item of "aftermarket" equipment. However, under Federal law you are considered a manufacturer of motor vehicle equipment, and are therefore subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your products contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

Safety Standard No. 201, Occupant Protection in Interior Impact, and No. 302, Flammability of Interior Materials, apply to new completed motor vehicles and set performance requirements for consoles and armrests installed on new motor vehicles prior to the vehicle's first sale to a consumer. While these standards do not apply directly to a console-armrest sold only as aftermarket equipment, installation of your product on both new and used vehicles may give rise to certain responsibilities on the part of any commercial business making the installation.

A manufacturer of a new vehicle installing your product on the vehicle prior to the vehicle's first sale to a consumer would be required to certify that the vehicle complies with all applicable Federal motor vehicle safety standards, including Standard No. 201. Paragraph S3.3 of the standard requires interior compartment door assemblies located in a console assembly to remain closed under certain test conditions. The purpose of the requirement is to prevent a door from flying open and striking an occupant in a crash. The door in your console would have to meet this requirement if your product is installed on a new vehicle prior to the vehicle's first sale. Your product would also have to comply with Standard No. 201's requirements for armrests specified in paragraph S3.5 of the standard if your console-armrest is installed in a new motor vehicle prior to the vehicle's first sale to a consumer.

Standard No. 302 specifies burn resistance requirements for certain vehicle components, including arm rests and compartment shelves. A vehicle manufacturer installing your product on a new vehicle would also have to ensure that the fabric on your console-armrest burns at a rate within the limits specified in the standard. I have enclosed copies of both Standards No. 302 and No. 201 for your information.

Section 108(a)(2)(A) of the Safety Act specifies that no manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable Federal motor vehicle safety standard. This means that none of the persons mentioned could install your product in a new or used vehicle if the installation would destroy the vehicle's compliance with applicable Federal safety standards. For example, the flammability resistance of the original vehicle is an element of design installed in a motor vehicle in compliance with Standard No. 302. Thus, a manufacturer, distributor, dealer or motor vehicle repair business could not install a console-armrest that does not comply with Standard No. 302 in a new or used motor vehicle since to do so would render inoperative that element of design, and thus violate 108(a)(2)(A) of the Act. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of 108.

In summary, your console-armrests that are sold to motor vehicle owners as items of aftermarket equipment are not subject to any Federal motor vehicle safety standard. The console-armrest could be subject to Federal standards for occupant interior and flammability protection if it is installed on new vehicles prior to the vehicle's first sale. Commercial businesses are prohibited from installing the console-armrest on new or used vehicles if the result renders inoperative the compliance of requisite safety components or designs with Federal safety standards. Individual owners, however, are not covered by 108(a)(2)(A) and may themselves install your product in their vehicles without regard to the rendering inoperative prohibition of the Safety Act. To repeat, you as the equipment manufacturer would be obligated to recall and remedy your products that contain a defect related to motor vehicle safety, even if the console-armrest were installed by vehicle owners themselves.

I hope this information has been helpful. Please feel free to contact us if you have further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:201#302 d:8/26/88

ID: 2892o

Mr. Jim Schuld
Mill Supply Inc.
3241 Superior Avenue
Cleveland, OH 44114

Dear Mr. Schuld:

This responds to your letter asking for information concerning the application of Federal safety standards to your manufacture of a jump seat that you said would be "removable and able to be transferred from one truck to another." I apologize for the delay in responding. Generally, Federal motor vehicle seating standards apply to motor vehicles prior to their first purchase by a consumer, and not to "aftermarket" seating components added to a vehicle after such purchase. However, several of our safety standards could apply to your product if the seat is installed in a new vehicle prior to the vehicle's first sale to a consumer. Federal law would also affect your installation of the jump seat in new or used vehicles.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to a removable jump seat sold directly to a consumer. Federal seating standards generally apply only to completed new motor vehicles and not to items of equipment such as a removable jump seat. However, as a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your jump seats contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

If your product will be installed on a new vehicle prior to the vehicle's first sale to a consumer, then the manufacturer of the vehicle will have certain responsibilities relating to its obligation under the Safety Act to certify the new vehicle as meeting all applicable Federal motor vehicle safety standards. Federal standards for seating systems (Standard No. 207) and crash protection (Standard No. 208) apply to designated seating positions in new vehicles. While these standards do not apply to auxiliary seating accommodations (e.g., temporary or folding jump seats), the determination must be made whether your apparatus falls into this latter category and is thus excluded from coverage. Unfortunately, information provided in your letter did not describe your jump seat in sufficient detail for us to offer an opinion as to whether your particular seat is an auxiliary seating accommodation. Photographs or engineering diagrams of your product would assist us in determining whether the seat would be considered an auxiliary seating accommodation, and thus excluded from coverage under Standard Nos. 207 and 208 if installed on new vehicles.

Another Federal standard to which the vehicle manufacturer must certify its vehicle as conforming is Standard No. 302, Flammability of Interior Materials. This standard establishes flammability requirements that must be met by certain vehicle components including seat cushions and seat backs on any occupant seat installed in a new vehicle prior to the vehicle's first sale to a consumer. A manufacturer installing your jump seat on a new vehicle would thus be required to ensure that any seat cushion or seat back on your product conforms to the flammability resistance requirements of the standard.

You should also be aware that there are statutory considerations that affect the installation of your jump seats in new and used vehicles. Section 108(a)(2)(A) of the Vehicle Safety Act specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing the jump seat to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the jump seat does not degrade from the safety of existing seating or occupant protection systems on the vehicle. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of 108.

In summary, removable jump seats sold to motor vehicle owners as items of aftermarket equipment are not subject to any Federal motor vehicle safety standard. The seat could be subject to Federal standards for seating performance and occupant crash and flammability protection if it is installed on new vehicles prior to the vehicle's first sale. Commercial businesses are prohibited from installing the jump seat if the result renders inoperative the compliance of requisite safety components or designs with Federal safety standards. Individual owners, however, are not covered by 108(a)(2)(A) and may themselves install the jump seat in their vehicles without regard to the rendering inoperative prohibition of the Safety Act. To repeat, you as the equipment manufacturer would be obligated to recall and remedy seats that contain a defect related to motor vehicle safety, even if the seats were installed by vehicle owners themselves.

Please feel free to contact us if you have further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

ref:207#302 d:8/26/88