Interpretation ID: NY_ bus_preemption

Robert A. Rybak, Associate Attorney
Office of Legal Affairs
State of New York
Department of Transportation
50 Wolf Road
Albany, NY12232

Dear Mr. Rybak:

This is in response to your letter and June13, 2005, facsimile asking whether the proposed changes to the New York State Department of Transportation (NYSDOT) bus inspection procedures are preempted by Federal regulations. We apologize for the delay in responding, as your original correspondence was lost. In short, we conclude that except for certain limited circumstances, the proposed procedures would not be preempted by Federal regulations.

In your letter, you explain that the new inspection procedures would require aftermarket bus modifiers to provide certain documentation and certification as to the scope of the changes made to a modified bus. Specifically, if the certification label required by 49 CFR Part 567 is missing, or contains information that no longer accurately reflects the vehicle because of the extent of modifications, the new procedures would require the modifiers to provide "Certification of the Present Status of Vehicles Altered, Modified, or Remanufactured After First Sale".

By way of background, the National Highway Traffic Safety Administration (NHTSA) issues Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and motor vehicle equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (49 U.S.C. 30101 et seq.), establishes a "self-certification" process under which all motor vehicle manufacturers, including bus manufacturers, are responsible for certifying that their vehicles meet all applicable FMVSSs. The certification label requirements are listed in 49 CFR Part 567. 567.4(g)(7) specifies that the certification label must indicate the type of the vehicle being certified (e.g., truck, bus, trailer).

With respect to your question, we first note that NHTSA does not generally regulate rebuilding or re-manufacturing of used motor vehicles, and thus, the States are not preempted from regulating these activities. However, if the rebuilding or remanufacturing involves sufficient manufacturing operations and new parts, the vehicle may be considered newly manufactured. This means that it would be required to meet all applicable safety standards in effect at the time of rebuilding (re-manufacture), and to be certified as conforming to those standards. Because of the variety of fact situations involved, the agency has found it difficult to establish a general requirement, and it provides opinions on a case-by-case basis.

We note that the preemption issue arises only with respect to the proposed NYSDOT requirements of certification. The States are not, of course, preempted from conducting inspections of all vehicles in question. We further note that, if a modified vehicle does not fall into the category of being deemed newly manufactured, the only other Federal requirement that is imposed on commercial entities that make modifications to used vehicles is that they "not knowingly make inoperative any part of a device or element of design installed on or in [the] vehicle . . . in compliance with an applicable motor vehicle safety standard . . ." (49 U.S.C. 30122(b)).

Finally, please be advised that on June 22, 2005, we published a notice of proposed rulemaking proposing to amend the definition of "designated seating position" (70 FR 36094). If this proposal is adopted, it may affect your procedures with respect to determining seating capacity.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:567
d.7/27/05