Interpretation ID: nht75-6.5
DATE: 04/25/75
FROM: AUTHOR UNAVAILABLE; James C. Schultz; NHTSA
TO: New York Department of Transportation
TITLE: FMVSR INTERPRETATION
TEXT: This is in reply to your letter of February 7, 1975, asking whether, consistently with Federal law, the New York Commissioner of Transportation may waive a safety rule which is based on a Federal safety regulation. You indicate that New York has rules which permit waivers of New York requirements. The case in point involves a waiver given to a bus owner who, because his vehicle was to be used only in the transportation of nursery school children, requested that the allowable occupant weight be set at 100 pounds rather than 120 pounds. The waiver was provided by giving the owner-operator of the vehicle a valid certificate of inspection.
The facts of the case, particularly how the vehicle in question is equipped and labeled, are not altogether clear from what you have told us. It appears that the manufacturer of the bus has labeled it with a gross vehicle weight rating that, contrary to the Federal certification regulations (49 CFR Part 567(g)(3)), does not equal the unloaded vehicle weight plus 120 pounds times the number of designated seating positions in the bus.
It appears from your correspondence that the certificate of inspection issued by the New York authorities fulfills purposes that differ from those of the Federal certification regulations. There is no Federal requirement that the State inspection rules incorporate the Federal requirements, as long as they do not conflict with the Federal safety standards or associated regulations. However, if the manufacturer has violated the Federal law, he is subject to its sanctions, and nothing the State can do would "forgive" the violation. If our assumptions concerning the facts of the case are correct, the State is free to deal as it sees fit with the fact that the bus does not conform to the Federal regulations.
Sincerely,
NEW YORK STATE DEPARTMENT OF TRANSPORTATION
February 7, 1975
Karen Kreshover, Esq. National Highway Traffic Safety Administration Department of Transportation
Re: pre-emption of state safety standards for buses: Request for interpretation
This is a formal request for an interpretation of the preemptive status of certion federal rules concerning bus safety. I spoke with you briefly on the phone on February 6, 1975 about this problem.
New York has rules (17 NYCRR 720.26 and 721.33) which permit the Commissioner of Transportation under certain conditions to, in effect, waive certain safety rules. I attach copies of these "waiver" provisions.
My question generally is, can the Commissioner "waive" or grant exception to rules adopted by New York which are based on federal requirements.
The particular application of this question concerns the definition stated in the National Highway Traffic Safety Administration rules concerning the definition of "Gross Vehicle Weight Rating." The rule (49 CFR 567.4) uses a 120 pound per pupil factor in determining GVWR. New York has a similar standard (17 NYCRR 720.1 (e) and 721.1 (p).
In at least one instance the Commissioner of Transportation has granted an exception concerning this rule. I am enclosing a copy of the order and report concerning this proceeding. This represents one example where a rule adopted to apply to the "average case" works hardship on a "special case." We believe that the Commissioner of Transportation of the State of New York should be free to grant exceptions in such cases.
I thank you in advance for your cooperation.
Michael D. McDonald Assistant Counsel
Historical Note
See added (Illegible Words) (Illegible Numbers)
720.26 Exception to safety regulations. (a) The commissioner upon application, may adopt an order issuing a certificate of inspection to the current owner or operator of a motor vehicle subject to this Part which falls to meet or achieve certain standards or requirements contained within this Part, if the commissioner shall determine that said vehicle as designed, constructed, altered or modified is safe to be operated within this State, and that the specific deviations from the standards and requirements contained in this Part in no way render such vehicle lens safe to passengers or to the public than had the vehicle complied with such provisions. Any order adopted pursuant to this section shall set forth the specific provisions contained in this Part with which the vehicle fails to comply, and in addition, state the reasons why the commissioner has so determined that the vehicle should be granted a certificate of inspection.
(b) The commissioner, or his duly authorized representative shall endorse clearly and legibly on the face of the certificate of inspection issued pursuant to this section that said certificate was issued pursuant to this section.
Historical Note
Sec. added, filed Mar. 29, 1974 off. Apr. 1. 1974
721.33 Exception to safety regulations. (a) The commissioner, upon application, may adopt an order issuing a certificate of inspection to the current owner or operator of a bus subject to this Part which fails to meet or achieve certain standards or requirements contained within this Part, if the commissioner shall determine that said vehicle as designed constructed, altered or modified is safe to be operated within this state, and that the specific deviations from the standards and requirements contained in this Part in no way render such vehicle less safe to passenger or to the public than had the vehicle complied with such provisions. Any order adopted pursuant to this section shall set forth the specific provisions
CHAPTER VI TRANSPORTATION REGULATION
@ 722.2 (Illegible Lines)
PART 722
REPORTS OF ACCIDENTS
(Statutory authority: Transportation Law @ 142)
See
721.0 Applicability
722.1 Reportable accidents
See
722.2 Accident report forms
722.3 (Illegible Word) to his reports
Historical Note
Part (@@ 722.0-722.2) filed Mar. 29, 1974 eff. Apr. 1, 1974.
Section 722.0 Applicability. Every operator of a motor vehicle subject to Department of Transportation inspection is hereby directed and required to comply with and obey the following rules and regulations.
Historical Note
See added, filed Mar. 29, 1974 eff. Apr. 1, 1974.
722.1 Reportable accidents. (a) Any accident in any way involving a motor vehicle subject to department inspection which results in the loss of life or injury of any passenger, employee or other person, or which was caused by mechanical failure regardless of whether or not injuries were incurred, shall be immediately reported to the department of telephone or telegraph.
(b) No work shall be performed on the vehicle involved until it is released by the Department of Transportation.
Historical Note
See, added filed Mar. 29, 1974 eff. Apr. 1, 1974.
722.2 Accident report forms. (a) An accident in any way involving a motor vehicle subject to department inspection which results in the loss of life or serious injury, or an injury requiring first aid or hospitalization at the time of the accident, shall be reported in writing to the department within 48 hours after it occurs. A written report shall be submitted within 48 hours when an accident was due to mechanical failure, regardless of whether or not personal injury occurred.
(b) Such written report may be submitted on an 8 1/2 inch by 11 inch sheet of paper duplicating such Form A. Appendix B-2, infra. In lieu thereof, such report may be submitted on a Federal Department of Transportation accident report form or on the accident report form required by the New York State Commissioner of Motor Vehicles.
2475 TR 3-31-74
NEW YORK STATE DEPARTMENT OF TRANSPORTATION
At the Office of the Department of Transportation in the City of Albany December 23, 1974
PRESENT:
Martin D. Zell, Assistant Commissioner for Transportation Regulatory Affairs
CASE 27647 - In the Matter of the issuance of a certificate of inspection to the current owner or operator of a bus or other motor vehicle pursuant to Section 720.26 or 721.33 of Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York. APPLICATION OF ABC CHILD CARE, INC. FOR EXCEPTION TO SECTION 720.1 (1).
ABC Child Care, Inc., having requested a certificate of inspection pursuant to the requirements and provisions of Section 720.26 of Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York, said certificate to be affixed to certain vehicles owned and operated by the carrier, and said vehicles having been presented for inspection and the Commissioner having determined that the vehicles deviate from certain standards set forth in his safety rules and regulations, and the Commissioner having further determined that such vehicles are safe to be operated within this State under certain conditions, and further, that the specific deviations from his safety rules and regulations in no way renders said vehicles less safe to passengers or to the public than had the vehicles complied with such provisions, it is
ORDERED:
1. To the extent and under the conditions set forth in the attached memorandum, ABC Child Care, Inc. is relieved from compliance with the requirements contained in Section 720.1 (1) of Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York, insofar as said regulations pertain to the use of certain vehicles owned and operated by the said carrier.
2. That if said vehicles otherwise complied with all of the applicable safety rules and regulations, a certificate of inspection shall be issued and affixed to said vehicles and there shall be endorsed clearly and legibly on the face of the certificate of inspection so issued a notation indicating that the certificate was issued pursuant to Section 720.26 of the above entitled regulations.
3. That this order and the certificate of inspection issued herein, shall remain in effect only for such period as said vehicles shall be used in the manner, under the conditions, and for the purpose set forth in the attached memorandum, and unless the Commissioner shall otherwise order.
4. That this order shall become effective immediately.
By the Assistant Commissioner for Transportation Regulatory Affairs
THOMAS B. TYREE Department Secretary
MEMORANDUM
APPROVED DEC 23 1974
DEPARTMENT OF TRANSPORTATION
DATE December 12, 1974
SUBJECT CASE 27647 - In the matter of the issuance of a certificate of inspection to the current owner or operator of a bus or other motor vehicle pursuant to Section 720.26 or 721.33 of Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York.
APPLICATION OF ABC CHILD CARE, INC. FOR EXCEPTION TO SECTION 720.1 (1).
FROM M. V. Chauvin, Traffic and Safety Division, Room 720, Bldg. 7A
TO M. D. Zell, Off. of Transp. Regulatory Aff., Room 503, Bldg. 5
ABC Child Care, Inc., Woodside, New York, has requested exception to Section 720.1 (1) of rules governing the safety of motor carriers of passengers which sets passenger weight of a school child at 120 pounds.
Mr. Tom Fasciolo, director of the school, has made this request on the basis of the limited clientele (youngsters age 3 to 6) that this nursery school serves. Considering that children in the 3 to 6 age bracket will not meet or exceed a weight of 100 pounds, it seems reasonable to reduce the requirement to meet the individual situation. In discussing this with Mr. Fasciolo it was learned that these vehicles are used exclusively to transport the nursery school children when operated in service that comes under the New York State Department of Transportation jurisdiction.
Therefore, it is recommended that an order be adopted granting permission to the ABC Child Care, Inc., 66-26 Laurel Hill Blvd., Woodside, New York to use a passenger weight of 100 pounds per nursery school child, with the understanding that the vehicles will be limited to the transportation of nursery school children exclusively.