ID: 8760

Mr. K. Aubrey Hottell
Smith and Robson, Inc.
Suite 200
354 North Prince St.
Lancaster, PA 17603

Dear Mr. Hottell:

This responds to your letter of June 7, 1993, requesting information on "air bag replacement, air bag indicator light functioning, and any requirements or recommendations for indicator lights to be functional upon resale of a vehicle."

With regard to air bag replacement, I am enclosing a letter, dated January 19, 1990, to Ms. Linda L. Conrad. As explained in this letter, Federal law does not require replacement of a deployed air bag in a used vehicle. In addition, there is no Federal law that prohibits selling a used vehicle with a supplemental restraint that is inoperable because of a previous deployment.

With regard to air bag indicator lights, S4.5.2 of Standard No. 208 requires a readiness indicator for an air bag system which is clearly visible from the driver's seating position. After an air bag is deployed, this indicator would show that the air bag system is not operative. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)) provides 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 ... in compliance with an applicable Federal motor vehicle safety standard.

As explained in the Conrad letter enclosed, this provision does not impose an affirmative duty to replace equipment damaged in a crash. Hence, there is no Federal law that prohibits selling a used vehicle with an air bag indicator that is inoperable because of damage in a crash. However, the named commercial entities are prohibited from removing, disabling, or otherwise "rendering inoperative" a functional indicator. Any violations of this "render inoperative" prohibition in the Safety Act would subject the violator to a potential civil penalty of up to $1,000 for each violation.

As noted in the Conrad letter enclosed, our agency strongly encourages dealers and repair businesses to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants. This recommendation would also include repair or replacement of a non-functioning indicator light.

I am also enclosing a copy of the information sheet referred to in the Conrad letter. I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures

ref:208 d: 7/21/93

ID: 8764

July 1, 1993

Mr. Ben F. Barrett Associate Director The Legislative Research Department 300 West Tenth Street, Room 545-N Topeka, KS 66612-1504

Dear Mr. Barrett:

This responds to your letter of June 7, 1993, in which you stated that a Kansas school district wants to use 15-passenger buses to transport school children, but does not want to cause those buses to meet the additional safety requirements applicable to school buses. You also stated that although the state definition of a school bus is the same as the Federal definition, it has been suggested that the state amend that definition to exclude 15-passenger vehicles. You asked our comments on the consequences of such legislation, including any sanctions, liability, or other issues that could result.

The National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381, et seq. (Safety Act), defines a school bus as a passenger motor vehicle "designed to carry more than 10 passengers in addition to the driver, and which . . . 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." This agency defines a bus as a motor vehicle "designed for carrying more than 10 persons," and a school bus is further defined as a bus that is sold "for purposes that include carrying students to and from school or related events." Thus, the 15-passenger buses to which you referred would clearly fall within the Federal definition of "school bus."

The Safety Act authorizes this agency to issue Federal motor vehicle safety standards which regulate the manufacture and sale of new motor vehicles. In the case of school buses, it is a violation of Federal law for any person to sell a new school bus that is not certified as complying with all applicable Federal safety standards. The onus is on the seller to ascertain the intended use of the new vehicle, and the seller is subject to substantial penalties for knowingly selling a noncomplying school bus, including civil fines and injunctive sanctions.

Section 103(d) of the Safety Act, 15 U.S.C. 1392(d) provides that no state shall maintain in effect any standard regulating an aspect of performance that is regulated by a Federal safety standard unless the state standard is identical to the Federal standard. If it is not, the Federal standard preempts the state standard unless the state standard imposes a higher level of safety and is applicable only to vehicles acquired solely for the state's own use. Therefore, even if the State of Kansas redefines a school bus to exempt 15-passenger buses, Federal law remains applicable and any new school bus sold in Kansas must comply with all applicable Federal safety standards, state law notwithstanding.

The purchaser or user of the vehicle is not under the same legal constraints as the seller. Since Federal law applies only to the manufacture and sale of a new vehicle, a school may use any vehicle it chooses to transport its students, whether or not the vehicle meets Federal safety standards. Further, there is no Federal requirement that the state or school district retrofit a vehicle to bring it into compliance with Federal standards. That is because once that vehicle has been sold new to the first customer, the use of that vehicle becomes subject to state law.

Although not required by Federal law, this agency strongly recommends that vehicles meeting Federal school bus safety standards be used to transport school children. In that connection, please find enclosed for your information a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety. This publication was issued under the authority of the Highway Safety Act of 1966, 23 U.S.C. 401, et seq., which authorizes this agency to issue nonbinding guidelines to which states may refer in developing their own highway safety programs. Guideline 17, jointly issued by this agency and the Federal Highway Administration, provides recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs. Specifically, the Guideline recommends, among other things, that any vehicle designed to carry more than 10 persons and which is used as a school bus comply with all Federal safety standards applicable to school buses at the time the vehicle was manufactured.

Finally, we would note that the use of vehicles that do not comply with Federal school bus safety standards to transport school children could result in increased liability in the event of an accident. Therefore, school districts should consult their attorneys and/or insurance carriers for advice on that issue.

We hope this information is helpful to you. Should you have any further questions regarding this matter, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:#571 d:7/l/93

ID: 8765

Ms. Margaret W. Mouzon
Mouzon Information Services
2687 Apple Way
Ann Arbor, MI 48104-1801

Dear Ms. Mouzon:

This responds to your letter of June 4, 1993, requesting information on dealer responsibility for occupant restraint system installation. You asked if a dealer is required to replace a deployed air bag prior to selling a used car. You also asked if the air bag must be operable when a dealer sells a showroom or demonstration model of an "otherwise new" car.

With regard to your first question, I am enclosing two letters that explain legal obligations to replace air bags which have been deployed. The first letter, dated January, 19, 1990, is to Ms. Linda L. Conrad. The second letter, dated March 4, 1993, is to Mr. Robert A. Ernst. As explained in those letters, Federal law does not require replacement of a deployed air bag in a used vehicle. In addition, there is no Federal law that prohibits selling a used vehicle with a supplemental restraint that is inoperable because of a previous deployment. However, our agency strongly encourages dealers and repair businesses to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants. Moreover, a dealer or repair business may be required by state law to replace a deployed air bag, or be liable for failure to do so.

With regard to your second question, section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1397(a)(1)(A)) 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, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." (Emphasis added) Section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)) provides that the prohibitions in section 108(a)(1)(A) "shall not apply to the sale, offer for sale, or the introduction or delivery for introduction in interstate commerce of any motor vehicle after the first purchase of it in good faith for purposes other than resale." Because of these statutory requirements, a dealership cannot legally sell or offer for sale a new car equipped with an air bag installed to meet the requirements of Standard No. 208, Occupant Crash Protection, if the air bag is not functional. A showroom or demonstration model would be considered a new car, as it has never been sold for purposes other than resale.

I am also enclosing a copy of the information sheet referred to in the two letters discussed above. I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures

ref:VSA#208 d:7/21/93

ID: 8768

Kenneth G. Koop, Risk Control Representative
Intergovernmental Risk Management Agency
One Oakbrook Terrace
22nd Street at Butterfield Road
Suite 412
Oakbrook Terrace, IL 60181

Dear Mr. Koop:

This responds to your letter of June 3, 1993, requesting information on a modification for police vehicles. You seek permission to remove the passenger seat and passenger air bag from police vehicles, and to permanently mount equipment where the passenger seat had been. As explained below, this type of modification would be permitted under Federal law.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. Among the standards that NHTSA has issued are two which could be affected by the modification you propose: Standard No. 207, Seating Systems, (49 CFR 571.207), which requires each vehicle to have an occupant seat for the driver and sets strength and other performance requirements for all occupant seats in a vehicle, and Standard No. 208, Occupant Crash Protection (49 CFR 571.208), which specifies occupant protection requirements based on vehicle type and seating position within the vehicle.

If your contemplated modification is made before a vehicle's first purchase for purposes other than resale, the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration (See 49 CFR Part 567.7). Once the front passenger seat is removed, Standard No. 208 would not require an air bag for that location since an occupant restraint is only required if a seating position is there.

After a vehicle's first purchase for purposes other than resale, i.e., the first retail sale of the vehicle, the presence and condition of devices or elements of design installed in the vehicle under applicable safety standards is affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides:

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 ... in compliance with an applicable Federal motor vehicle safety standard.

NHTSA does not consider there to be a violation of the "render inoperative" prohibition with respect to occupant restraints if, after one of the named types of commercial entities modifies a used vehicle, the vehicle is equipped with occupant restraints at every seating position and those occupant restraints are the type that Standard No. 208 permitted when the vehicle was new. Again, if a seating position were removed from a used vehicle, the removal of the air bag as well would not violate the render inoperative provision because the presence of the air bag was originally premised on the presence of the seating position. However, the render inoperative prohibition would be violated if removal of the passenger side air bag caused the driver side air bag to malfunction or deploy. I would like to caution you to contact the vehicle manufacturer concerning the proper procedure for any air bag removal. Removing an air bag could cause it to deploy and injure the mechanic. In addition, removal of the passenger side air bag could cause the driver side air bag to malfunction or deploy.

You should also note that the "render inoperative" prohibition applies only to the named entities. Therefore, vehicle owners are permitted to make any modifications to their vehicles, even if the vehicle would no longer comply with applicable safety standards. However, we encourage vehicle owners not to tamper with the occupant protection systems installed in their vehicles.

You should be aware that S4.5.2 of Standard No. 208 requires a readiness indicator for an air bag system which is clearly visible from the driver's seating position. NHTSA believes that most manufacturers install one indicator for both air bags. After the passenger side air bag is removed, this indicator would show that the air bag system is not operative. NHTSA is concerned that the driver would then be unable to tell if the driver side air bag were functional. Therefore, I urge you to contact the manufacturer to determine how the indicator could be altered to monitor the readiness of the driver side air bag only.

As a final caution, I note that the purpose of the "render inoperative" provision is to ensure, to the degree possible, current and subsequent owners and users of the vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Your letter states that you will "place permanently mounted policing equipment in the seat's place." It is our understanding that it is common for police cars to be sold after a few years of service. Presumably any police equipment would be removed before such a sale. I urge you to either reinstall the passenger seat and occupant restraint or to make these modifications in a way that will discourage reinstallation of the passenger seat, so that future users of the vehicle are unlikely to use a seating position that does not have any occupant restraint.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA#207#208 d:8/26/93

ID: 8781

Mr. Malcolm Bricklin
President
The Electric Bicycle Company
27426 Pacific Coast Highway
Malibu, CA 90265

Re: Petition for Exemption

Dear Mr. Bricklin:

We have received your letter of March 20, 1995, asking for an exemption from two provisions of Motor Vehicle Safety Standard No. 123 on the basis that "compliance with the standards, in this instance, will constitute a greater hazard to the general public and will result in more accidents caused by operator error than the alternatives that we propose."

I am sorry to inform you that we cannot consider your request in its current form. For your guidance, I enclose a copy of our temporary exemption regulation, 49 CFR Part 555. I suggest that the appropriate basis for your petition under that regulation is section 555.6(d): that you are otherwise unable to sell a vehicle whose overall level of safety is the equivalent of, or exceeds, the overall level of safety of a nonexempted vehicle.

When you have filed a petition that provides the information required by Part 555, we shall be pleased to consider this matter further. Because of the need to afford the public an opportunity to comment, a decision is rarely reached until three to four months after a petition is received.

If you have any questions on the regulation, Taylor Vinson of this Office will be glad to answer them (202- 366-5263; FAX: 202-366-3820).

Sincerely,

Philip R. Recht Chief Counsel

Enclosure

ref:555 d:4/3/95

ID: 8783

Mr. Han Dinh
Project Manager
United States Postal Service
8403 Lee Highway
Merrifield, VA 22082-8101

Dear Mr. Dinh:

This responds to your letter requesting information about the conversion of postal vehicles to operate on compressed natural gas (CNG). You explained that you are deciding which specifications to apply to the CNG pressure vessels on the converted vehicles. You ask whether we would recommend the American Gas Association's voluntary standard, NGV-2, or the Department of Transportation standard for cylinders which transport CNG.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. NHTSA also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

At present, NHTSA has not issued any standard applicable to CNG cylinders or vehicles using CNG as a fuel. However, as you know, NHTSA has undertaken rulemaking on a safety standard for CNG tanks and vehicles. (58 FR 5323, January 21, 1993.) In response to our January 1993 proposal, the agency received over 55 comments, which we are currently analyzing. We expect our next regulatory decision in early 1994. Given that this rulemaking has not been completed, NHTSA is unable to recommend to you a particular course of action with respect to the NGV-2 and DOT standards at this time.

If NHTSA were to issue a safety standard for CNG cylinders and vehicles, the standard would apply to new products, and have applicability to vehicle conversions as follows. The cylinder regulation would be an equipment standard. Thus, all cylinders manufactured after the effective date of the standard would be required to comply with its requirements, whether they are placed on new vehicles or on vehicles converted to CNG fuel.

The fuel system regulation would apply to new vehicles as manufactured by original equipment manufacturers or as converted prior to the first sale of the vehicle. Once the vehicle is sold, if the vehicle is converted by a commercial converter, the CNG fuel system regulation would apply if the vehicle was manufactured after the effective date of the standard and thus would have been regulated if it had originally been a CNG vehicle. With this in mind, I have enclosed a discussion that sets forth the implications under Federal law of converting gasoline-powered vehicles to use propane or other gas (such as CNG). That discussion addresses 108(a)(2)(A) of the Safety Act, which prohibits vehicle manufacturers, distributors, dealers and repair businesses from "knowingly rendering inoperative, in whole or in part, any device or element of design installed . . . in compliance" with any FMVSS.

In addition, please be aware that manufacturers of CNG tanks and vehicles are subject to the requirements in sections 151- 159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufacturer of the tank or vehicle determines that the product contains a safety- related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

Our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for commercial vehicles used in interstate commerce. For further information about FHWA requirements, you can contact that agency's Chief Counsel's office at (202) 366-0650.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel Enclosure ref:303 d:8/16/93

ID: 8796

Mr. Alan Niedzwiecki
Director of Business Development
EDO Corporation
14-04 111th Street
College Point, NY 11356-1434

Dear Mr. Niedzwiecki:

This responds to your letter requesting information about this agency's activities related to cylinders for "compressed natural gas (CNG) vehicle on-board motor fuel storage." According to your letter, EDO is developing an all-composite cylinder that has a safety factor of 3.5. You further explained that your company is planning to begin a conversion program using these cylinders.

Mr. Marvin Shaw of my staff discussed your letter with your associate, Mr. John Vincenzo. Mr. Vincenzo said that EDO knows that the National Highway Traffic Safety Administration (NHTSA) is conducting a rulemaking related to CNG cylinders. Mr. Vincenzo seeks confirmation that, until a rule results from that rulemaking, there is no Department of Transportation regulation with which your company is required to comply before you start your conversion program.

By way of background information, NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, the Safety Act establishes a "self- certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. NHTSA also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

At present, NHTSA has not issued any standard applicable to CNG cylinders or any regulation dealing with the conversion of vehicles to be equipped with such cylinders. Therefore, until such time as a standard is issued, you are correct that you are not required to comply with any NHTSA safety standard related to CNG fuel systems.

However, please be aware that manufacturers of CNG tanks and vehicles are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufacturer of the tank or vehicle determines that the product contains a safety- related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, NHTSA has certain restrictions on vehicle fuel system conversions, depending on who does the conversion and when the work is done. I have enclosed a discussion that sets forth the implications under our present regulations of converting new and used gasoline-powered vehicles to use propane or other gas (such as CNG). That discussion addresses NHTSA's vehicle alterer requirements (49 CFR 567.7) which apply to work on new vehicles, and the Safety Act's "render inoperative" provision (108(a)(2)(A)), which applies to work on new and used vehicles. Section 108(a)(2)(A) prohibits vehicle manufacturers, distributors, dealers and repair businesses from "knowingly rendering inoperative, in whole or in part, any device or element of design installed ... in compliance" with any FMVSS. Please contact us if you have further questions relating to the enclosed discussion.

I also note that the enclosed discussion is based on the FMVSS's that are currently in effect. As you know, NHTSA issued a proposed rule for CNG tanks and vehicles using CNG as a fuel. (58 FR 5323, January 21, 1993). If the agency were to ultimately decide to adopt the proposal, it would be necessary for NHTSA to revisit the "render inoperative" issues that relate to vehicle conversions. For example, if NHTSA were to issue a safety standard for CNG cylinders, all cylinders manufactured after the effective date of the standard would be required to comply with its requirements, whether they are placed on new vehicles or on new or used vehicles converted to CNG fuel.

With regard to present requirements for vehicle conversions, you should also note that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For information about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650.

You were particularly interested in NHTSA's proposed rule for CNG tanks and vehicles using CNG as a fuel. In response to that proposal, the agency received over 55 comments (including one from your corporation), which we are currently analyzing. We expect our next regulatory decision in early 1994. In addition, please be aware that the January 1993 notice was a proposal and does not necessarily reflect the precise requirements that will be contained in the final rule.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel Enclosure ref:303 d:8/l3/93

ID: 8805john

Mr. James N. Doan
Counsel - Operations
Eaton Corporation
Eaton Center
Cleveland, OH 44114-2584

Dear Mr. Doan:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 101, Controls and Displays. You asked whether an automatic vehicle speed control (also known as a cruise control), that you describe as "mounted on the transmission shift lever," must be illuminated. As explained below, the answer is no.

S5.3.1 sets requirements concerning controls which must be illuminated. S5.3.1 excludes from the illumination requirements hand operated controls that are mounted on the floor, floor console or steering column.

You believe that your proposed control would be considered "mounted on the floor or floor console" and thus excluded from S5.3.1's illumination requirements. We agree that locating the control on the shift lever is similar to locating it on the floor console for the purposes of the illumination requirements. This interpretation is based on agency precedent concerning S5.3.1's exception for controls on steering columns. In the preamble to a final rule of May 4, 1971 (36 FR 8296), NHTSA determined that the exception for controls mounted on the steering column extends to controls mounted on the steering wheel. Since the transmission shift lever bears the same relationship to the floor console as does the steering wheel to the steering column, controls on the transmission shift lever are excepted from S5.3.1's illumination requirements.

I hope that this information is useful. If you have any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:101 d:9/21/93

ID: 8807

Ms. Gail Lindsey
Hillsborough County Public Schools
Risk Management and Safety Department
707 East Columbus Drive
Tampa, FL 33602

Dear Ms. Lindsey:

Your letter of June 23, 1993, to Mr. Ron Engle of the office of Transportation Safety Programs, this agency, was referred to this office for reply.

You explained in your letter and in a telephone conversation with Walter Myers of this office that it has been your School Board's policy to prohibit the use of mini-vans to transport school children to and from special events, requiring instead the use of school buses. You stated that the policy is controversial among parents, however, resulting in the School Board reconsidering the issue. You therefore requested information on "crash safety standards" of mini-vans or any other recommendations we can provide to assist the school board in making a safe and fair determination in the matter.

For your information, enclosed are copies of letters to Senator Jim Sasser dated July 7, 1992; Rep. John J. Duncan, Jr. dated May 29, 1992; Mrs. Alice Collins, dated August 1, 1988; a pamphlet issued by this agency entitled Federal Motor Vehicle Safety Standards and Regulations; a fact sheet issued by this office entitled Where to Obtain NHTSA's Safety Standards and Regulations; and a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety, referred to in the letter to Mr. Duncan.

The enclosed materials should answer your concerns in this matter. I would like to emphasize that, as explained in the materials, it is NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students. Despite the additional cost of these vehicles, I encourage Hillsborough County to give its most careful consideration to the possible consequences of transporting students in vehicles, such as mini-vans, that do not comply with school bus regulations.

Should you have any further questions or need any additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures

ref:571 d:8/5/93

ID: 8810

Jerry G. Thorn, Esq.
General Counsel, OGC-040
U.S. Consumer Product Safety Commission
Washington, DC 20207

Dear Mr. Thorn:

This responds to your letter of June 22, 1993 requesting an interpretation of whether an aerosol brake cleaning product marketed under the Solder Seal/Gunk brand is considered "motor vehicle equipment" under section 102(4) of the National Traffic and Motor Vehicle Safety Act. As explained in further detail below, this item is considered motor vehicle equipment.

As you are aware, section 102(4) of the Safety Act defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle ....

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine the expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the brake cleaning aerosol, it appears that the product would be an accessory under the Safety Act. This is based on the information provided in your letter and by Harleigh Ewell of your office to David Elias of mine in a July 23, 1993 telephone conversation. An advertisement you enclosed for the brake cleaning aerosol contains statements (e.g., "quickly dissolve and flush away brake fluid," and "helps to eliminate brake squeal and `chatter'") indicating that a substantial portion of the expected use of the product is related to maintaining motor vehicles. Also, according to Mr. Ewell, the product is sold in auto supply stores, which further indicates its intended use with motor vehicles. Second, based on the product's purpose as suggested by statements on the advertisement, (e.g., "cleans and evaporates almost instantly," "can be applied without disassembly of the unit," and "keep out of reach of children") and by the type of store that retails the product, it appears that the aerosol brake cleaner is intended to be used principally by ordinary vehicle owners.

I hope this information is helpful. If you have any further questions, please feel free to contact David Elias at the above address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA d:8/5/93