ID: nht87-2.63

TYPE: INTERPRETATION-NHTSA

DATE: 08/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: The Honorable John P. Murtha

TITLE: FMVSS INTERPRETATION

TEXT:

The Honorable John P. Murtha Member of Congress Post Office Box Johnstown, PA 15907

Dear Mr. Murtha:

Thank you for your letter to the Department of Transportation's Office of Congressional Affairs, which has been referred to me for a response. In an addendum enclosed with your letter, you note that one of your constituents, Mr. Gene Bird, would like inf ormation on the Federal regulations addressing "completing the finishing work on automobiles." Apparently, another manufacturer would send small sports cars to Mr. Bird's business. Your addendum states that these sports cars "will need the following type of work done: installation of the engine, components, radiators, interiors, and the cars will finally have to be tested." I am pleased to have this opportunity to explain our statute and regulations to you.

By way of background, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) requires every new motor vehicle sold in the United States to be certified as complying with all applicable federal motor vehicle safety standards. The Safet y Act also specifies that the manufacturer itself must certify that each of its vehicles complies with all applicable safety standards in effect on the date of manufacture. Because of this statutory requirement, this agency does not "approve" any vehicle s or offer assurances that the vehicles comply with the safety standards.

Further, the Safety Act does not require that a manufacturer's certification be based on a specified number of tests or any tests at all. The Safety Act only requires that the certification be made with the exercise of "due care" on the part of the manuf acturer. It is up to the individual manufacturer in the first instance to determine what data, test results, or other information it needs to enable it to certify that its vehicles comply with the safety standards. We would certainly recommend that a new manufacturer test some of its vehicles for compliance with the applicable safety standards.

It is not entirely clear from your addendum whether Mr. Bird would be classified as an "alterer" or a "final stage manufacturer" under our regulations. His company would be considered an "alterer" of motor vehicles, if the second company referred to in y our addendum furnishes completed and certified sports cars to Mr. Bird's company, and Mr. Bird's company changes the engine and other components on those vehicles. If this is the contemplated action, Mr. Bird's company would be treated as an alterer unde r our regulations.

The certification requirements for alterers are set forth in 49 CFR S567.7 (copy enclosed). Generally speaking, that section requires a person who alters a vehicle before its first purchase to supplement the certification label affixed by the original ma nufacturer with its own certification label. The alterer's certification label must include all of the information set forth in Part 567, including a statement that the altered vehicle complies with all applicable safety standards in effect on the date t he vehicle was altered. In the case of sports cars, an alterer must certify that the altered car complies with all of the following:

49 CFR S571.101 Controls and Displays; 49 CFR S571.102 Transmission Shift Lever Sequence; 49 CFR S571.103 Windshield Defrosting and Defogging Systems; 49 CFR S571.104 Windshield Wiping and Washing Systems; 49 CFR S571.105 Hydraulic Brake Systems; 49 CFR S571.106 Brake Hoses; 49 CFR S571.107 Reflecting Surfaces: 49 CFR S571.108 Lamps, Reflective Devices, and Associated Equipment; 49 CFR S571.110 Tire Selection and Rims; 49 CFR S571.111 Rearview Mirrors; 49 CFR S571.112 Headlamp Concealment Devices; 49 CFR S571.113 Hood Latch System; 49 CFR S571.114 Theft Protection; 49 CFR S571.115 Vehicle Identification Number; 49 CFR S571.116 Motor Vehicle Brake Fluids; 49 CFR S571.118 Power-operated Window Systems; 49 CFR S571.124 Accelerator Control Systems; 49 CFR S571.201 Occupant Protection in Interior Impacts; 49 CFR S571.202 Head Restraints; 49 CFR S571.203 Impact Protection for the Driver from the Steering Column; 49 CFR S571.204 Steering Control Rearward Displacement; 49 CFR S571.205 Glazing Materials; 49 CFR S571.206 Door Locks and Door Retention Components; 49 CFR S571.207 Seating Systems; 49 CFR S571.208 Occupant Crash Protection; 49 CFR S571.209 Seat Belt Assemblies; 49 CFR S571.210 Seat Belt Assembly Anchorages; 49 CFR S571.211 Wheel Nuts, Wheel Discs, and Hub Caps; 49 CFR S571.212 Windshield Mounting; 49 CFR S571.214 Side Door Strength; 49 CFR S571.216 Roof Crush Resistance; 49 CFR S571.219 Windshield Zone Intrusion; 49 CFR S571.301 Fuel System Integrity; and 49 CFR S571.302 Flammability of Interior Materials.

Alternatively, Mr. Bird's company may be treated as a "final stage manufacturer," as that term is defined at 49 CFR S568.4. A final stage manufacturer means a person who finishes the manufacturing operations on an incomplete vehicle. Thus, if the second company referred to in your addendum is planning to furnish Mr. Bird's company with sports cars that have no engine, radiator, and so forth, the vehicles provided to Mr. Bird's company would be considered "incomplete vehicles" and Mr. Bird's company woul d be considered a "final stage manufacturer."

If this is the case, Mr. Bird's certification responsibilities depend on the information he is provided by the manufacturer of the incomplete vehicle; i.e., the second company referred to in your addendum. Part 568 (copy enclosed) requires the manufactur er of the incomplete vehicle to furnish Mr. Bird's company with a document that states one of three things for the incomplete vehicle. These are:

1. The vehicle when completed will conform to some or all of the applicable safety standards if no alterations are made to any identified components of the incomplete vehicle.

If Mr. Bird receives such a document and does not make any of the specified alterations, his company could certify compliance with the standards listed in the previous manufacturer's document simply by stating that compliance has not been affected by the operations performed by Mr. Bird's company. See 49 CFR S567.5(c)(7). Mr. Bird's company would have to certify compliance with any applicable standards not listed in this document.

2. The vehicle when completed will conform to some or all of the applicable safety standards if specific conditions are followed by the final stage manufacturer.

If Mr. Bird receives this type of document, his situation will be very similar to that described above. That is, if his company follows the specific conditions, it could certify compliance with the standards listed in the previous manufacturer's document simply by stating that compliance has not been affected by the operations performed by Mr. Bird's company. See 49 CFR S567.5(c)(7). Again, Mr. Bird's company would have to certify compliance with any applicable standards not listed in this document.

3. Conformity with some or all of the standards is not substantially affected by the design of the incomplete vehicle, so the incomplete vehicle manufacturer makes no representation as to conformity with the standards.

If Mr. Bird receives this type of document, his company would be required to certify compliance with the standards identified in the document on its own. This type of document would put Mr. Bird's company in the same position as an alterer for the listed standards.

I have also enclosed a general information sheet for new manufacturers of motor vehicles. This sheet highlights the relevant Federal statutes and the National highway Traffic Safety Administration regulations that may apply and explains how to get copies of our regulations. I hope that this information is helpful. If you have any further questions about our regulations, please contact this office.

Sincerely, Erika Z. Jones Chief Counsel Enclosures

JUNE 19 1987 The Honorable John P. Murtha Member, U.S. House of Representatives Post Office Box 180 Johnstown, Pennsylvania 15907

Dear Mr. Murtha:

Thank you for your letter concerning an inquiry from your constituent, Mr. Gene Bird.

I have transmitted your inquiry to the appropriate Departmental officials who are familiar with this matter and they will respond to you directly.

I appreciate your contacting me and hope you will not hesitate to call if I can be of any further assistance.

Sincerely, Edward J. Babbitt Director, Office of Congressional Affairs

Mr. David P. Sloane, Director Office of Congressional Affairs U. S. Department of Transportation 400 Seventh Street, SW Washington, D.C. 20590

Dear Mr. Sloane:

The attached communication from my constituent is submitted for your earnest consideration.

Please investigate the statements contained therein and forward to me information on which I may base a proper reply.

Your early action and advice will be appreciated.

With every good wish,

Sincerely, JOHN P. MURTHA Member of Congress JPM/jm Enclosure

P.S. Please send reply to:

The Honorable John P. Murtha Member of Congress Post Office Box 780 Johnstown, Pennsylvania 15907

ATTN: Jean McAleer

Phone no. (814) 535-2642, FTS 723-9241 or 9370

Inquiry made by phone personal visit TIME: DATE: 6-05-87 Name Gene Bird Classic Motor Works Address 100 Station Street Town Johnstown, PA Zip 15905 Telephone number 814 288-6911 Social Security number Veterans Claim Number COMMENTS: (Please explain only)

Mr. Bird would appreciate the federal stipulations governing completing the finishing work on automobiles.

He said another company would like to do business with him. They will send small sports cars to his business which will need the following type of work done: installation of the engine, components, radiators, interiors, and the cars will finally have to be tested.

ID: nht87-2.64

TYPE: INTERPRETATION-NHTSA

DATE: 08/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Thomas Baloga

TITLE: FMVSS INTERPRETATION

TEXT: Mr. Thomas Baloga Safety Engineering Mercedes-Benz of North America, Inc. P.O. Box 350 Montvale, NJ 07645

Dear Mr. Baloga:

Thank you for your letter of May 12, 1987, to Stephen Oesch of my staff concerning the requirements of Standard No. 208, Occupant Crash Protection. You asked the agency to confirm that the 36 millisecond time interval to be used in the calculation of the head injury criterion (HIC) applies both to the Part 572, Subpart B test dummy and to the Subpart E test dummy. This is to confirm that the 36 millisecond time interval should be used in the calculation of a HIC for both types of test dummies.

On October 17, 1986 (51 F2 37028), NHTSA published a final rule in the Federal Register amending Safety Standard No. 208, Occupant Crash Protection. One of the amendments modified the manner in which a HIC is calculated in the crash testing required by t he standard. That amendment referred to @6.2 as the provision of the standard containing the HIC requirement. Instead, the notice should have amended @6.1.2, which sets out the HIC calculation for the Part 572, Subpart B test dummy, and @6.2.2, which set s out the HIC calculation to be used with the new Part 572. Subpart E test dummy.. The agency will publish an amendment to adopt the necessary changes to @6.1.2 and @6.2.2 to make clear that the change to the calculation of the HIC criterion affects thos e two provisions.

If you need further information, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

Mr. Steve Oesch Legal Counsel Department of Transportation NHTSA 400 Seventh St., S.W. Washington, DC 20590

Subject: Docket 74-14, Notice 47 Concerning FMVSS 208 Published in the Federal Register October 17, 1986

Dear Mr. Oesch:

Confirming our telephone request of May 4, 1987, we would be most appreciative if NHTSA could acknowledge in writing that in the subject FR it was erroneously printed, on page 37033 paragraph @6.2, that for calculating HIC values, the 36 millisecond time interval applies only to the Part 572, Subpart E, Hybrid III test dummy.

A corrected Part 571.208 will, in the future, indicate that the 36 millisecond time interval for HIC calculation applies to using either a Hybrid III or a Part 572 Subpart B test dummy. Since a correction notice in the FR may be further delayed due to hi gher priorities, we are eager to obtain this confirmation as soon as practicable.

Thank you very much for your assistance.

Sincerely,

Thomas Baloga Safety Engineering (201) 573-2622

ID: nht87-2.65

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Richard Logan -- President, Logan Conversions, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your June 3, 1987, letter asking for information on installing a left side passenger door on new and used school buses. You stated that the door you wish to install would be added to the vehicle as an extra exit and you do not intend to seal or otherwise make inoperable any existing door. Installing an extra exit on a school bus is permitted by our regulations, provided that the work performed complies with our requirements for vehicle modifications. The applicable requirements for su ch modifications depend on the nature of the work performed and when it was done.

Before I begin to explain our requirements, let me clarify that the National Highway Traffic Safety Administration (NHTSA) does not have a process by which businesses such as yours apply to and are approved by the agency. Instead, under the National Tra ffic and Motor Vehicle Safety Act and NHTSA regulations, you are responsible for determining whether your vehicle modifications conform to Federal law and making the requisite certification in accordance with that determination. This "self-certification " process requires you to determine in the exercise of due care that you have met all applicable requirements.

If you install the door on a new school bus, you are considered an "alterer" of a previously certified motor vehicle. Under our requirements for alterers, set forth in 49 CFR Part 567.7 of our regulations (copy enclosed), you must certify that the vehic le, as altered, complies with all applicable Federal motor vehicle safety standards. Among the standards applicable to the bus are our school bus safety standards, and these include Standard No. 217, Bus Window Retention and Release.

In the case of Standard No. 217, which sets emergency exit requirements, it is important whether the additional exit in question is intended to be used as an emergency exit. While we do not prohibit the installation of additional exits in school buses, this agency has long held the position that extra "emergency exits" in school buses should comply with the

2

requirements set forth in 217 for non-school bus emergency exits. If the door is not labeled or intended as an emergency exit, then Standard No. 217's requirements are not applicable.

Modifications of new or used vehicles by commercial businesses are also governed by @ 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (copy enclosed). This section requires Logan Conversions to ensure that the modifications it performs do not render inoperative the compliance of vehicles with Federel motor vehicle safety standards. For example, when installing the extra door, your business could not alter the seats in the school bus in a manner that would take the bus out of complian ce with Safety Standard No. 222, School Bus Passenger Seating and Crash Protection. Violations of @ 108(a)(2)(A) are punishable by civi penalties of up to $ 1,000 per violation.

I hope this information is helpful. In addition to copies of the above-mentioned documents, I have also enclosed information on how you can obtain copies of NHTSA regulations for your future reference. Please contact my office if you have further quest ions.

Sincerely,

Enclosures

ATTACH.

June 3, 1987

Erika Jones -- National Highway Traffic Safety Administration, CHIEF COUNSELS OFFICE

Dear Ms. Jones,

We are a major school bus company that is based in New York City and its suburbs, and operate approximately 300 vehicles.

As part of our contractual obligation to the City of New York we are required to have part of our fleet equipped with left side passenger doors, as well as the standard right side door.

We currently own and contemplate purchasing additional school buses that do not meet left side door at this time.

We are seeking the proper authorization to perform the left side door conversions in our shops, utilizing our mechanical staff. It is for this reason that I forward this information to your office for review and a response on what steps must be taken by our corporation to perform these conversions meeting all New York State and National Highway Administration requirements.

To begin with, as you are aware, we as a New York State bus contractor are govern by the rules and regulations of the Department of Transportation. In accordance with the observance of New York State D.O.T. requirements, I have brought our conversion re quest to the attention of Mr. Robert Bailey whom is the chief motor vehicle inspector for our region. It was Mr. Bailey that suggested that I forward this request to yourself, pertaining to the specific listed below.

(1) All necessary information and applications to perform the above conversions on our own vehicles as well as vehicles owned by others.

(2) All necessary information for conversions on new and used buses.

(3) All Federal requirements for the above conversions.

Enclosed is a letter from Carpenter Body Works which indicates their interest in authorizing us to do left door conversions.

Thanking you in advance for prompt attention to our request.

Very tryly yours,

Richard Logan -- President, LOGAN CONVERSIONS LTD.

cc: Robert Bailey Chief Motor Vehicle Inspector, NYC State of New York Department of Transportation

CARPENTER BODY WORKS, INC.

November 18, 1986

Logan Bus Co., Inc.

ATTN: RICHARD LOGAN

Dear Mr. Logan:

We are enclosing all of the necessary prints for the conversion of 1977 through present buses that require the left side entrance door. Parts and prices can be obtained through your local Carpenter Dealer. If we can be assured that this conversion w ill be done complete as shown on the enclosed prints, Carpenter will authorize this body design conversion.

Sincerely,

Keith Eckensberger Senior Product Engineer

ID: nht87-2.66

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Larry F. Wort; Illinois Department of Transportation

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/23/76 letter from F. Berndt to Dept. of Transportation - New York (Std. 222); 8/11/87 letter from Erika Z. Jones to Melvin H. Smith

TEXT:

Larry F. Wort, Chief Bureau of Safety Programs Division of Traffic Safety Illinois Department of Transportation 2300 S. Dirksen Parkway Springfield, IL 62764

This responds to your May 26, 1967, letter to me asking about our requirements in Standard 222, School Bus Passenger Seating and Crash Protection, for restraining barriers and seat back height. I appreciate this opportunity to explain our requirements. I n this discussion, I would also like to go over preemption issues that are raised by the state law you describe.

In your letter, you said that Illinois has recently enacted a law requiring 28-inch-high seat backs on new large school buses (i.e., buses with gross vehicle weight ratings greater than 10,000 pounds). You ask whether the 28-inch-high seat backs w ould negate the requirement for a restraining barrier in front of the front passenger seat. The answer is no.

Paragraph S5.2 of Standard 222 specifies: "Each vehicle shall be equipped with a restraining barrier forward of any designated seating position that does not have the rear surface of another school bus passenger seat within 24 inches of its seating refe rence point . . . ." The standard makes no exception for any type of school bus passenger seat. The reason for the broad application is clear, since restraining barriers are needed to compartmentalize the seating area.

Your second question was whether the height of the restraining barrier must be as high as the height of the extended seat back. The answer is no. The requirements for restraining barrier surface area are found in paragraph S5.2.2 of Standard 222. That section states: "in a front projected view of the bus, each point of the barrier's perimeter coincides with or lies outside of the perimeter of the seat back of the seat for which it is required." The seat back of the seat for which a restraining barrier is required has dimensions specified in S5.1.2 of the standard. A restraining barrier must therefore only coincide with or lie outside of the seat back surface required by S5.1.2. If a seat back su rface exceeds the size required in Standard 222, the size of the restraining barrier need not coincide.

The preemption issue you raise relates to the Illinois law mandating the 28-inch-high seat backs and FMVSS 222's seat back height requirement. I have enclosed a copy of our recent letter to Mr. Melvin Smith of your Department which explains that the Illi nois law for 28-inch high seat backs is preempted by Federal law. However, as discussed in our letter, the State may require the high seat backs for public school buses.

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

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

(See 8/11/87 letter from Erika Z. Jones to Melvin H. Smith; also see 3/23/76 letter from F. Berndt to Dept. of Transportation - New York)

May 26, 1987

Dear Ms. Jones:

When a school bus with gross vehicle weight rating (GVWR) more than 10,000 pounds is equipped with passenger seats having 28 inch seat backs (i.e., all backs about 4 inches higher than standard seat backs), will federal Motor Vehicle Safety Standard 222 (49 CFR 571.222) require a restraining barrier for each front seat?

If a restraining barrier is required for each front seat having a 28 inch high seat back, in a school bus with a gross vehicle weight rating more than 10,000 pounds, must the height or that barrier match the seat back height:

Illinois law requires every Type I school bus (GVWR more than 10,000 pounds) manufactured after June 30, 1987 and sold, purchased, or used as a school bus within Illinois to be "equipped with passenger seat backs having a seat back height of 28 inches". A bus body manufacturer has pointed out that to accommodate the higher backs either the bus body must be longer or "knee clearance" must be reduced throughout the bus. Omitting the two front barriers would provide additional space to accommodate the high seat backs without lengthening buses or shortening knee clearances.

We will be most grateful for an immediate answer to our questions.

Sincerely,

Larry F. Wort, Chief Bureau of Safety Programs Division of Traffic Safety

ID: nht87-2.67

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Melvin H. Smith -- Illinois Dept. of Transportation

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/23/76 letter from F. Berndt to Dept of Transportation - New York (Std - 222); 8/11/87 letter from Erika Z. Jones to Larry F. Wort

TEXT:

Mr. Melvin H. Smith Governor's Representative for Highway Safety Illinois Department of Transportation 2300 S. Dirksen parkway Springfield, IL 62764

This responds to Your June 9, 1987, letter to me asking whether Section 103(d) of the National Traffic and Motor Vehicle Safety Act preempts an Illinois statute requiring 28-inch high seat backs on all new large school buses. The answer to your question is yes.

I must disagree with your view that FMVSS No. 222, School Bus Passenger Seating and Crash Protection, does not regulate seat back height. A seat back height requirement, established in paragraph S5.1.2, is an integral part of the standard's mandated comp artmentalization system of passenger crash protection. This agency has consistently said that any State requirement relating to seat back height that is not identical to S5.1.2 is preempted under Section 103(d) of the Safety Act.

I have enclosed a copy of a March 23, 1976 letter to Mr. Martin Chauvin relating to the preemptive effect of Federal law over a New York State law for 28-inch high seat backs. Please note the discussion in the Chauvin letter relating to State requirement s for additional safety features in public school buses. Under Section l03(d), a State may require a seat back height higher than 20 inches for its public school buses, provided that the vehicles continue to comply with all applicable federal safety stan dards.

I will send a copy of this letter to Mr. Larry Wort of your Department, whose earlier letter to us asking about our requirements for seat back height and restraining barriers raised also the same preemption issues. Please feel free to contact my office i f you have further questions.

Sincerely, Erika Z. Jones Chief Counsel Enclosure

(see 3/23/76 letter from F. Berndt to Dept. of Transportation - New York; see also 8/11/87 letter from Erika Z. Jones to Larry F. Wort)

June 16, 1987

Ms. Erika Z. Jones, Chief Counsel National Highway Traffic Safety Administration Room 5219 480 Seventh Street, S.W. Washington, D. C. 20590

Dear Ms. Jones:

My letter of June 9, 1987. about preemption of the Illinois statute requiring 28 inch high seat backs in school buses contains an inadvertent error. On the first page, In the last full paragraph. the reference in parentheses should have read (49 CFR 571. 222S5.1.2.).

Please correct the reference and forgive our error.

Sincerely, Melvin H. Smith Governor's Representative for Highway Safety

June 9, 1987

Ms. Erika Z. Jones. Chief Counsel National Highway Traffic Safety Administration Room 5219 480 Seventh Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

In this letter I ask you to agree that the Illinois statute requiring 28 inch high seat backs on passenger seats in Type I school buses Is not preempted by a Federal statute; i.e., 15 USC 1392(d). A copy of the Illinois statute (Section 12-807.1 of the I llinois Vehicle Code (IVC) - Ill. Rev. Stat., 1986 Supp., ch. 95 1/2. par. 12-807.1) is enclosed. A Type I school bus has a GVWR more than 10,000 pounds (IVC 12-800, enclosed) .

We believe IVC 12-807. 1 is not preempted because it governs an aspect of performance not governed by a federal Motor Vehicle Safety Standard (FMVSS - 49 CFR 571).

In Illinois. every school bus must meet the construction standards promulgated by this Department. (See IVC 1-182, 12-100. and 12-812, enclosed. By administrative agreement, the State Board of Education promulgates rules. regulations, and/or standards fo r OPERATION of school buses.) This Department's construction standards, among other things, require that each school bus conform to applicable provisions of FMVSS. The "high back" seats must conform to FMVSS 222. Each manufacturer of Type I school buses agrees and so certifies on the required permanently affixed Federal and State certification labels.

FMVSS 222 does not specify the height of a seat back. Instead, it specifies that each school bus passenger seat shall be equipped with a seat back that presents a prescribed front surface area located between two horizontal planes, one of which passes th rough the seating reference point while the other is 20 inches above the seating reference point (49 CfR 572.222S5. 1.2) . Each 28 inch high seat back required by IVC 12-807. 1 presents the required area and. according to Manufacturer's certifications, o therwise conforms to each applicable FMVSS requirement.

FMVSS 222 does not specify or limit the amount of the seat back's front surface area which may be located above the higher of the

Ms. E. Z. Jones June 9, 1987 Page Two

two horizontal planes. FMVSS 222 does not specify or limit the maximum distance the top of the seat back may be located above the empty seat cushion, the seating reference point. or any other point, plane, or object. In short, FMVSS 222 does not limit ei ther the maximum area or the maximum height of the seat back installed on a school bus passenger seat.

Please advise that the Illinois statute requiring 28 inch seat backs on passenger seats in Type I school buses (Ill. Rev. Stat.. 1986 Supp., ch. 95 1/2, par. 12-807.1) is not preempted. Because of the effective date of this statute, a prompt reply will b e deeply appreciated.

Sincerely, Melvin H. Smith Governor's Representative for Highway Safety Enclosures

1986 SUPPLEMENT TO REVISED STATUTES 1985 STATE BAR ASSOCIATION EDITION

Laws of the 84th General Assembly from Acts 84--1109 through 84-l431 Convened January 8, 1986 Adjourned July 2, 1986

with INDEX

ID: nht87-2.68

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Troy C. Martin

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Troy C. Martin Specification/Inspections Chief Texas State Purchasing and General Services Commission P.O. BOX 13047 Capitol Building Austin, TX 78711-3047

Dear Mr. Martin:

This is in response to your letter of February 25, 1987, concerning the regulations applicable to buses used by State Schools to transport children to non-school related activities. You have asked us to address this question for each type of State School , some of which are not "schools" at all, and for public and private schools generally.

In beginning my answer, I want to stress the distinction between the State and Federal regulation of school buses. The question of what bus to use for a particular trip is a question of State regulation. Although there are federal guidelines for school b us use, these are not binding on the States and Hill not be discussed in this letter. The question of what bus nay be sold for transporting children is a matter of Federal regulation. It is this question that we can answer.

A "school bus" is defined by the National Traffic and Motor Vehicle Safety Act in terms of its anticipated use. A bus is thus a "school bus" if the Secretary of Transportation determines it is likely to be significantly used for the purpose of transporti ng primary, preprimary, or secondary school students to or from such schools or events related to such schools.

A person who sells a new bus that Hill be "significantly used" for the purposes listed in the school bus definition must ensure that the bus meets- the Federal motor vehicle safety standards applicable to school buses. Selling a nonconforming bus for sch ool bus use will subject the seller to a civil penalty of up to 000 for each vehicle and up to $800,000 for a related series of violations. The question of the bus's use is thus of considerable consequence both to the seller and to the buyer.

As you describe the State Schools in Texas, each type of School provides 24-hour residential care for children but offers a differing degree of educational service. One type is certified as a school district and provides instruction on campus, a second t ype is certified as a school district but offers no instruction, and a third is neither certified nor equipped for instruction. In purchasing a new bus for any of the three types of State School, you would need to ask the same question: Is the bus going to be "significantly used" to transport students to and from school or school-related events? If it will be used in this fashion, it will have to be certified as conforming to the school bus safety standards.

I can visualize circumstances under which a bus purchased for any of the three types of State School would have to be certified. The first type is a bona-fide school, so that any use of a bus to transport children to or from the School would be a trip "t o or from" school within the school bus definition of the Vehicle Safety Act. We expect that any new bus sold for use in this type of School would be certified as a school bus.

The second type of State School, though certified as a school district, offers no instruction. We would not consider either this type or the third type to be a "school," which we define as an institution for the instruction of children at the preprimary, primary, or secondary level. A new bus purchased for the use of one of these types of State School, and used for no other school transportation' would not have to be certified as a school bus. However, if the bus were to be purchased for the purpose of transporting children from the State School to local public or parochial schools on a regular basis, we would consider it to be "significantly used" for that purpose, even though it might also be used for other transportation unrelated to school.

A new bus sold for the use of a bona fide school, whether public or private, will almost invariably be required to be certified. Although a bus might conceivably be purchased by a school for the sole use of school employees, such a restriction would be r are. We would expect that virtually all buses purchased by a school would be required to be certified to the school bus standards.

Since the certified school bus has been shown to be the safest vehicle for children, we strongly endorse the use of a certified bus to transport children for any purpose, whether or not school-related. However, our regulatory authority extends only to th e manufacture and sale of new buses, not to their use for a particular trip. For those trips for which a school considers using a noncertified bus, we suggest that you review the Texas regulations on the use of school buses.

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

Sincerely, Original Signed By Erika Z. Jones Chief Counsel

February 25, 1987 Ms. Erika Z. Jones, Chief Counsel Room 5219 National Highway traffic Safety Administration 400 7th Street NW Washington, D.C. 20590

Dear Ms. Jones:

He have in the State or Texas certain Institutions called State Schools which may or may not educate students on their campuses (but these Institutions have, responsibility for 24-hr care of the children living there). There arises questions concerning whether or not the vehicles used to transport ten or more or these children to non-school related activities must be certified as school buses. I understand that the transporting or school children to and from school and to and from school related events such as activity trips require vehicles certified as school buses if the vehicle is equipped with ten or more passenger seats. What is unclear to me is what is considered school-related. I would appreciate your answering the following questions so that we can advise these institutions about transporting children:

1. Is an Institution such as a State School required to use a vehicle which is certified as a school bus to carry ten or more passengers to events not related to the public school activities (such as shopping trips downtown to purchase clothing, etc., tr ips to the local parks and playgrounds for entertaining the children, out-of-town trips such as a trip to the State Capital, etc.), if

a) the Institution is certified by the State or Texas as a school district, they teach children on their campus, and in all ways are considered as a school.

b) the Institution is certified by the State of Texas as a school district, however, they do not teach students on campus (their students go to the local public schools).

c) the Institution is not certified by the State or Texas as a school district, they do not teach students on campus, and the children living there attend the local public school, however, the Institution is called a State School.

2. Is a bona fide school, either public or private, required to use certified school buses to transport students to and from activities not related to school activities? For example, if the city government (or Institutional leaders) decided it would be a good idea to take all (or some) of the school children in one city (or an Institution) to a zoo in a nearby city; and this event was not coordinated with school officials; and the school officials were not involved in the project? or, another example, t he Superintendent of a private school decides to transport all of their students to a church activity in a nearby city.

I suppose, that the answers to the above questions and others that crop up from time to time about transporting children, really lies in the definitions of two terms: schools and school related. I would appreciate it, if in your reply you would give the federal definition of these two terms, and expand on them by giving some examples of what is and what is not a school, school related, etc. It would be very helpful to us.

Sincerely yours, Troy C. Martin Specification/Inspections Chief cc: Mr. Tommy Crowe

ID: nht87-2.69

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Ernest Farmer -- Director, Pupil Transportation, Tennessee Dept. of Education

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Ernest Farmer Director, Pupil Transportation Tennessee Department of Education Office of Commissioner Nashville, TN 37219-5335

This responds to your letter to Administrator Steed, asking how our regulations apply to the refurbishment of used school buses. I would like to apologize for the delay in this reply. In your letter, you explained that the Tennessee Department of Correc tions plans to use prison labor to "refurbish" used school buses. The refurbishing procedures may include replacing the engine in the school bus with a new engine, or replacing the rear axle. You are concerned that this undertaking might conflict in some way with our regulations applicable to school buses, and posed five specific questions as to how our regulations would apply to your planned refurbishment.

Before addressing your specific questions, I would like to provide some background information. As you may know, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq. gives this agency the authority to regulate the manufacture and sal e of new vehicles. Thus, all new school busses must be certified as complying with all Federal motor vehicle safety standards that are applicable to school buses. Additionally, the Safety Act prohibits commercial establishments, such as repair businesses or school bus dealers, from performing modifications to school buses after they have been sold, if those modifications cause the used bus no longer to comply with the safety standards. As a general rule, however, vehicle owners are not subject to this p rohibition, and are free to modify their vehicles without regard to whether the modified vehicle complies with the safety standards.

It is possible that a vehicle owner's modifications would be so substantial that the resulting vehicle would be a new vehicle instead of just a modified vehicle. In this case, the new vehicle would be required to be certified as complying with all applic able safety standards in effect on its date of manufacture, just like every other new vehicle. This date would be the date such substantial modifications are completed. To allow vehicle modifiers to determine when a modified truck or school bus has been so substantially altered that it is considered a new vehicle, we have set forth specific criteria in 49 CFR @571-7(e) of our regulations. In past interpretations of our regulations, NHTSA has applied @571.7(e) to school buses that are assembled combining new and used components, because school buses are typically manufactured with a truck chassis. Under @571.7(e), 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 an d at least two of these three listed components are taken from the same used vehicle.

I will now address your specific questions in the order they were presented:

1. Has NHTSA taken an official position on the refurbishment of school buses?

Yes, we have. As explained above, we have set forth specific criteria to allow refurbishers to determine whether a refurbished school bus is a new bus, subject to all applicable school bus safety standards in effect on the date of manufacture, or a refur bished used bus.

Further, while we encourage effective school bus maintenance programs, we would be concerned if a refurbishment program has the effect of avoiding the replacement of obsolete school buses. The school bus safety standards do not apply to school buses that were manufactured before April 1, 1977. It is possible that a refurbishment program could be used to continuously recondition these old buses that do not comply with any school bus safety standards, and use them for pupil transportation. We believe that school buses complying with the Federal school bus standards are one of the safest means of transportation, and that school bus safety will improve as complying school buses replace older non-complying school buses. We certainly hope that school bus own ers will ensure that their fleets are replenished with complying school buses. In addition, I am enclosing a copy of a Federal Register notice we published on September 23, 1985, (5O FR 38558 ), which denied a petition for rulemaking from the Blue Bird C ompany concerning the remanufacture of school buses. In this notice, we expressly encouraged school bus operators to consider voluntarily meeting Federal school bus safety standards when they refurbish their school buses.

2. Would such refurbishment void the original manufacturer' s certification?

The original school bus manufacturer's certification means that the school bus as sold was manufactured to comply with all applicable safety standards. The manufacturer's certification does not mean that a school bus continues to comply with the safety s tandards after it is sold, since that obviously depends on many factors beyond the manufacturer's control, such as maintenance, any accidents, any modifications, and so forth. Since the original manufacturer's certification is limited to the vehicle's co ndition at the time of sale, it cannot be "voided" by any subsequent actions of the vehicle owner.

If you were asking whether a refurbisher is required to make a separate certification in addition to the original manufacturer's certification, the answer depends on whether the refurbished school bus is considered "new" or simply refurbished, according to the criteria set forth in @571.7 (e). If the refurbished school bus is new according to those criteria, the refurbisher is required to certify that the school bus complies with all applicable safety standards in effect on the date of manufacture, and affix its own certification label to the school bus. If the refurbished school bus is not considered new, the refurbisher is not required to affix another certification label. Instead, the refurbisher simply allows the original manufacturer's certificati on label to remain on the school bus.

3. Would the State Department of Correction be required to recertify all refurbished buses to the NHTSA?

The answer to this question depends on whether the refurbished buses are considered new under @571.7(e). If the buses are not new according to those criteria, no additional certification is necessary as explained above. However, the specification sheet f or the refurbishment that has enclosed with your letter indicates that the refurbishing procedures may include replacing the engine in the school bus with a new engine, or replacing the rear axle. Every school bus that is equipped with a new engine or dr ive axle would be considered a new school bus, according to @571.7 (e). Additionally, each school bus on which the engine, transmission, and/or rear axle are replaced with used components will be considered a new school bus, unless two of those three com ponents came from the same vehicle. If your refurbishing constituted the manufacture of a new vehicle, the State of Tennessee would be considered the manufacturer of those vehicles.

As explained above, each refurbished school bus that is new, according to the criteria of @571.7(e), must be certified by its manufacturer as complying with the school bus safety standards in effect on the date of manufacture. However, the manufacturer d oes not make any certification directly to the agency. Instead, the Safety Act requires the manufacturer to furnish a certification with the vehicle. We have promulgated a regulation that sets forth how each vehicle must be certified as complying which t he Safety Act (49 CFR Part 567: copy enclosed). As you will see, this regulation requires that the manufacturer permanently affix a label certifying that the vehicle complies with the applicable safety standards. I have also enclosed for your information an information sheet that describes generally the responsibilities of manufacturers of new motor vehicles.

4. Is the refurbishment process permitted under current NHTSA standards?

As explained above, the refurbishment program is permitted, provided that it complies with the applicable requirements.

5. What responsibility and/or liability would be assumed by the Department of Education and the Department of Correction under such a refurbishment proposal?

If the State of Tennessee engages in operations during school bus refurbishing that make it a manufacturer of new vehicles, according to @571.7 (e) , the State would be responsible for compliance with the requirements of the Safety Act itself and this ag ency's regulations issued pursuant to the Safety Act. The State would also be responsible for remedying any vehicles that either do not comply with applicable safety standards or that contain a defect related to motor vehicle safety. NHTSA does not provi de advice on the State's potential liability under State law for manufacturing and refurbishing school buses. Therefore, you might wish to consult an attorney familiar with Tennessee law for information on these matters.

I hope this information is helpful. Please contact this office if you have any further questions on this program.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

Ms. Diane Steed NHTSA - U.S. Department of Transportation 400 Seventh Street S.W. Washington, D.C. 20590

Dear Ms. Steed,

The Tennessee Department of Correction is planning to construct a refurbishment facility that will be relying on prison labor to supply the work force required to keep it operable. We have no problem with their wanting to keep inmates busy but we are som ewhat concerned about their intent to keep them busy by working on our older school buses, especially when such may be in conflict with certain standards in your agency.

Your prompt response to the following questions will be appreciated. 1. Has the NHTSA taken an official position on the refurbishment of school buses?

2. Would such refurbishment void the original manufacturer's certification?

3. Would the State Department of Correction be required to re-certify all refurbished buses to the NHTSA?

4. Id the refurbishment process permitted under current NHTSA standards?

5. What responsibility and/or liability would be assumed by the Department of Education and the Department of Correction under such a refurbishment proposal?

Thank you for any assistance you may provide.

Sincerely yours,

Ernest Farmer, Director Pupil Transportation

EF/lr

Enclosures omitted (Specification sheet for refurbishment.)

ID: nht87-2.7

TYPE: INTERPRETATION-NHTSA

DATE: 06/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: David C. Maroon -- The Sentinel Group

TITLE: FMVSS INTERPRETATION

TEXT:

David C. Maroon The Sentinel Group P.O. BOX 905 Miami, FL 33137-0905

Thank you for your letter to Stephen Oesch of my staff concerning Standard No. 205, Glazing Materials. I regret the delay in our response. You explained that your company represents, on an exclusive basis, a number of different manufacturers of both wind shields and tempered glazing materials for automobiles. You asked whether it is possible to consolidate these different manufacturers "into one identity by using both one DOT number assigned to the Sentinel group as well as one universal logo.: As explai ned below, the answer is yes with regard to using one logo, but no with regard to using one DOT certification number.

S6 of Standard 205 specified certification and marking requirements for manufacturers and distributors of glazing material for use in motor vehicles and motor vehicle equipment. All glazing material must be marked both with the basic identifying informat ion specified in section 6 of the ANSI standard Z26.1 (as modified by S6.1 of Standard 205) and with a certification that the glazing meets the requirements of all applicable federal motor vehicle safety standards. Different certifications are specified for prime manufacturers and other manufacturers/distributors of glazing material (contained in paragraphs 56.2 through S6.2 of the standard).

Further distinction in certification requirements for prime manufacturers depends on whether the glazing is designed for use in a specific motor vehicle or camper, or whether the glazing is designed to be cut into components for use in motor vehicles or items of motor vehicle equipment. (A prime manufacturer is defined in 56.1 of the Standard as one who fabricates, laminates or tempers the glazing material, as opposed to one who alters or cuts an already manufactured piece of glazing.)

Since you indicate in your letter that the manufacturers you represent make windshields and tempered glazing materials for automobiles, we assume that the glazing is manufactured by the prime manufacturer and is designed for use in a specific motor vehic le or camper. In this case, the S6.2 certification requirements apply, which include marking each piece of glazing material with the symbol DOT and a manufacturer's code mark, assigned by NHTSA.

The purpose of the manufacturer's code mark is to aid the agency in identifying the actual manufacturer of the glazing for the purpose of defect and noncompliance recall campaigns. Accordingly, the agency only issues a code mark to a manufacturer that ac tually fabricates, laminates or tempers glazing material. We have found the code mark to be an effective method to identify the manufacturer for enforcement purposes.

Because of this, the agency is less concerned that the distinctive logo be for the same company as that which the code mark indicates. for example, in a November 7, 1983, letter to the Libby-Owens-Ford Company, the agency stated that so long as the manuf acturer places its DOT code mark on the glazing materials, the tracing and enforcement policies would not be circumvented and the use of another company's logo would now violate Standard No. 205. Accordingly, it is acceptable, if you wish, to have each p rime manufacturer mark its glazing material with its unique code mark and your logo for the Sentinel group, which is used for all of the various manufacturers you represent.

I hope this provides an adequate response to your question.

Sincerely,

Erika Z. Jones Chief Counsel

October 30, 1986 Stephen Oesch Office of Chief Counsel NHTSA 400 7th Street, S.W. Washington, D.C. 20590

Dear Mr. Oesch:

Per my telephone conversation with Mr. Harper today, I am writing you to request a legal interpretation of the intent of the DOT number. As relayed to you by Mr. Harper, Sentinel would like to be assigned its own "DOT number". We currently represent, on an exclusive basis, a number of different manufacturers of both windshields and tempered parts for automobiles and would like to know whether it would be possible for us to consolidate into one identity by using both one DOT number assigned to the Sentin el group as well as one universal logo.

Please advise us as to whether this would be possible at your earliest convenience.

Thanking you in advance for your cooperation,

Sincerely,

DAVID C. MAROON

ID: nht87-2.70

TYPE: INTERPRETATION-NHTSA

DATE: 08/13/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Peter H. Ziemke

TITLE: FMVSS INTERPRETATION

TEXT:

Peter H. Ziemke, Esq. Pryor, Carney and Johnson P.O. Box 22003 Wellshire Station Denver, CO 80222-0003

Dear Mr. Ziemke:

This responds to your request for a determination of the applicability of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Safety Act: 15 U.S.C. 1381 et seq.) to a client of your firm. This client performs several patented steps on flat fabric to produce a fabric containing honeycomb-shaped air cells. The processed fabric is then sold in bulk to fabricators licensed by your client. These fabricators manufacture the bulk fabric into custom-made window shades for use in mobile ho mes and recreational vehicles. Your client intends to advertise this product as suitable for use in motor vehicles and available in finished form through licensed fabricators.

You then posed four questions based on these facts. First, you asked whether the processed fabric your client sells to fabricators to be made into window shades for motor vehicles would be considered "motor vehicle equipment" under the Safety Act. Proces sed fabric by itself is not considered motor vehicle equipment.

As you noted in your letter, the term "motor vehicle equipment" is defined in section 102(4) of the Safety Act (15 U.S.C. 1391(4)) a follows:

"Motor vehicle equipment" means 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 an accessory or addition to the motor vehicle ..."

The window shades for motor vehicles that are produced after further manufacturing operations are performed on the fabric sold by your client are motor vehicle equipment for the purposes of the Safety Act. That is because those window shades are both man ufactured and sold for replacement or improvement of the window shades in vehicles or as an addition to those vehicles that do not have window shades.

However, the processed fabric itself must have further manufacturing operations performed on it before it is sold as window shades for motor vehicles. We do not believe that the term "motor vehicle equipment' can fairly be read to include materials that are not products for use in or with motor vehicles, but can be made into such products if some further manufacturing operations are performed on the subject materials. If the term were read so broadly, all aluminum and steel would be considered motor veh icle equipment, since those materials can be made into motor vehicle parts, most upholstery would be motor vehicle equipment, since could be made into seat covers, and so forth. Such an overbroad reading would be inconsistent with the meaning and intent of the Safety Act. Accordingly, the processed fabric produced by your client is not motor vehicle equipment for the purposes of the Safety Act.

Second, you asked whether your client would be considered a "manufacturer" under the Safety Act by virtue of its production of the processed fabric. Section 102(5) of the Safety Act (15 U.S.C. 1391(5)) defines a "manufacturer" as "any person engaged in t he manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." Since the processed fabric is not considered motor vehicle equipment, as explained above, y our client is not a "manufacturer" for purposes of the Safety Act. Conversely, since the window shades for use on motor vehicles are motor vehicle equipment, the licensed fabricators that convert the processed fabric into such window shades would be manu facturers for purposes of the Safety Act.

Your third and fourth questions were based on the assumption that the processed fabric would be considered motor vehicle equipment and your client would be considered a manufacturer. Even though these assumptions were not correct, I would like to answer these questions, so that your client will understand the responsibilities of the licensed fabricators that turn its processed fabric into window shades for motor vehicles. You asked whether a manufacturer of motor vehicle equipment would be required to c omply with the Safety Act and Federal Motor Vehicle Safety Standard No. 302 (49 CFR S57l.302) if the product is only advertised for sale to owners of vehicles for them to install themselves, or, alternatively, if the product is only advertised for sale t o customizers and automobile dealers.

All manufacturers of motor vehicle equipment are subject to the provisions set forth in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419 concerning the recall and remedy of equipment with defects related to motor vehicle safety. If it were determi ned that these vehicle window shades had a defect related to motor vehicle safety, the shade manufacturer would have to notify all purchasers of the defect and either:

l. repair the shade so that the defect is removed: or

2. replace the shade with an identical or reasonably equivalent product that does not have a defect.

Whichever of these options were chosen, the manufacturer would have to bear the full expense of the remedy and could not charge the product owners for the remedy if the shades were first purchased less than 8 years before the notification campaign. These responsibilities apply to all equipment manufacturers, regardless of whether the shades were installed by vehicle owners or customizers and dealers.

With respect to Standard No. 302, it sets forth flammability requirements that must be met by shades in motor vehicles. Generally, however, the requirements set forth in Standard No. 302 apply to a vehicle only until its first purchase in good faith for purposes other than resale, and not to aftermarket shades added to a vehicle after its first purchase. Under this general rule, it would not violate Standard No. 302 to add aftermarket shades to vehicles after the first purchase in good faith for purpose s other than resale, even if the addition of the shades caused the vehicles to no longer comply with Standard No. 302.

This general rule is, however, limited by the application of the provisions of section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowing ly 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 ..." The flammability resistance of the original vehicl e 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 that installed window shades which did not comply with the flammability resistance req uirements of Standard No. 302 would be rendering inoperative that element of design, and thereby violating section lOB(a)(2)(A) of the Safety Act. Section 109 of the Safety Act (l5 U.S.C. 1398 specifies a civil penalty of up to ,000 for each violation of section 108, and each vehicle in which noncomplying shades were installed would be considered a separate violation.

Accordingly, there is a difference in the application of Standard No. 302 to the window shade manufacturers, depending on who installs those shades in vehicles. As explained above, if the finished shades do not afford at least as good a level of flammabi lity resistance as is specified in Standard No. 302, the shades cannot legally be installed in vehicles by any manufacturer, distributor, dealer, or motor vehicle repair business. However, shades which provide lesser flammability resistance than is speci fied in Standard No. 302 may legally be installed in vehicles by the owners of those vehicles. To repeat, the shade manufacturer would still be obligated to recall and remedy shades that are determined to contain a defect related to motor vehicle safety, even if those shades were installed by vehicle owners themselves.

Sincerely,

Erika Z. Jones Chief Counsel

May 22, 1987 Erika Z. Jones, Esq. National Highway Traffic Safety Administration Office of Chief Counsel 400 Seventh Street, S.W., Room 5219 Washington. D. C. 20590

Re: Request for Formal Determination of Applicability of National Highway Traffic Safety Act to Hunter Douglas, Inc.

Dear Ms. Jones :

On December 19, 1986, I spoke with Steven Oesch, Esq. of your office regarding the applicability of the National Highway Traffic Safety Act ( "the Act") to certain activities of my client, Hunter Douglas, Inc. After some discussion with Mr. Oesch, he sug gested that I apply for a formal determination from your office of the applicability of the Act to my client. Please consider this letter my formal request, on behalf of Hunter Douglas, Inc., for a determination of whether the Act governs the following a ctivities of my client.

This law firm represents the window fashions division of Hunter Douglas, Inc., a Delaware corporation. The window fashions division is located at 601 Alter Street, Broomfield, Colorado 80020. Hunter Douglas is the owner of certain technologies for the ma nufacture of a window covering product known as a honeycomb fabric pleated shade. The flat fabric is purchased by Hunter Douglas from outside sources and, through several patented processing steps performed by Hunter Douglas, the finished product is a fa bric window shade containing honeycomb-shaped air cells . The processed fabric is then sold in bulk to fabricators who manufacture window shades to customers " specifications. One of the intended applications for this product is custom-made window shades for mobile homes and recreational vehicles. Hunter Douglas requests a formal determination of whether its involvement in this product brings it within the scope of the Act as a "manufacturer" of motor vehicle equipment. " subject to Federal Safety Stand ard 302 and the accompanying recordkeeping and certification requirements of the Act.

Erika Z. Jones, Esq.

May 22, 1987

Page 2

As stated above, Hunter Douglas, Inc. is not the manufacturer of the finished product; rather, it simply manufacturers one of the component parts of a product and promotes it for use in, among other things, motor homes and recreational vehicles. The fabr ic shade has been manufactured from flame retardant material and has passed the standard NFPA 701 " fire tests for flame-resistant textiles and films" and also meets Safety Standard 302.

Hunter Douglas, Inc. intends to advertise this product, available in finished form through licensed fabricators, for sale to owners of recreational vehicles and motor homes and also to businesses specializing in customizing recreational vehicles and moto r homes for the owners of the vehicles. It is our understanding that Federal Safety Standard 302 is a "dealer standard ": That vehicle manufacturers and dealers are the entitles required to conform to Federal Safety Standard 302 and not replacement equip ment manufacturers who manufacture equipment for sale to individual vehicle owners and to customizers.

Based upon the above facts, please provide me with a formal determination of the following:

1. Is the product manufactured by Hunter Douglas, Inc.--materials used by other non-affiliated manufacturers to construct window shades which Hunter Douglas, Inc. advertises as suitable for automotive use - "motor vehicle equipment" within the meaning of 15 U.S.C. S 1391(4)1?

2. Is Hunter Douglas, Inc. - manufacturer of a material sold to other non-affiliated manufacturers for the manufacture of window shades, advertised by Hunter Douglas, Inc. as suitable for use in motor vehicles - a "manufacturer" within the meaning of 15 U.S.C. S 1391(5)?

3. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product Is only advertised for sale to private owners of motor vehicles?

4. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product is only advertised for sale to customizers or automobile dealers?

If you need any additional Information about this product, its intended uses, Hunter Douglas ' contractual arrangements with its fabricators

Erika Z. Jones, Esq. May 22, 1987 Page 3

or any other information, please contact me at your convenience and I will collect the information you need from Hunter Douglas, Inc. and transmit it to you as quickly as possible. Thank you.

Sincerely yours,

PRYOR, CARNEY AND JOHNSON

A Professional Corporation

Peter H. Ziemke

PHZ/pre

cc: Steven Oesch, Esq. Hunter Douglas, Inc., Window Fashions Division

ID: nht87-2.71

TYPE: INTERPRETATION-NHTSA

DATE: 08/13/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Jack Quinn

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Jack Quinn Ms. Terri Southwick Arnold & Porter 1200 New Hampshire Avenue, NW Washington, DC 20036

Dear Mr. Quinn and Ms. Southwick:

This responds to your letter requesting an interpretation of Safety Standard No. 102, Transmission Shift Lever Sequence, Starter Interlock, and Transmission Braking Effect. We regret the delay in our response. You described an automatic transmission and asked whether the transmission complies with Standard No. 102. Also, you asked several specific questions about the standard. Your questions are addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment comply with applicable safety standards. The following represents our opinion based on the facts provided in your letter.

You provided the following description of the automatic transmission at issue:

. . . downshift occurs automatically from "drive" to "second" at 29 mph and from "second" to "first" gear at 13 mph. Forced manual downshift is possible at and below 25 mph (from "second" to " first"). Thus, at speeds between 13 and 29 mph, there is at l east one forward drive position ("first") manually available which provides a greater degree of engine braking than does the gear then automatically in use ("second"). At 13 mph and below, the transmission is automatically in a gear ("first") that provid es greater engine braking than would the highest speed transmission ratio if that position ("drive") were available at such low speeds. Of course, in the lowest gear, there is no lower gear available which would provide greater engine braking effect.

In your first question, you asked whether the described transmission complies with Standard No. 102. Your letter indicates that your concern is limited to section S3.1.2 of the standard.

Section S3.1.2 provide:

S3.1.2 Transmission braking effect. In vehicles having more than one forward transmission gear ratio, one forward drive position shall provide a greater degree of engine braking than the highest speed transmission ratio at vehicle speeds below 25 miles p er hour.

It should be noted that Standard No. 102 applies to motor vehicles and not to transmissions per se. Thus, compliance with the standard is determined with respect to the vehicle.

I would also note that, as we have stated in past interpretations, the phrase "at vehicle speeds below 25 miles per hour" is inclusive. Thus, it means at all speeds below 25 mph, and not at a speed.

One issue raised by your design is whether there must be at least two gears available at some or all speeds below 25 mph. for vehicles with two or more forward transmission gear ratios. The answer to this question is no. It is our interpretation that the standard requires that one forward drive position must provide a greater degree of engine braking than the highest gear ratio and that it must provide that degree of engine braking at all speeds below 25 mph. The standard does not require that the highe st (or other higher) ratio be available at some or all speeds below 25 mph.

A second issue is whether the requirement for greater braking effect at vehicle speeds below 25 mph must be met by one (and only one) forward drive shift lever position or whether more than one position providing greater braking effect may be utilized. I t is our opinion that where a manufacturer chooses to provide more than one forward transmission gear position, each of which provides a greater degree of engine braking than the highest gear ratio, all such positions may be counted toward meeting this r equirement.

A third issue is whether the requirements of section S3.1.2 can be met by automatic downshifting (to a gear ratio that provides a greater degree of engine braking) or whether manual downshifting must be available. In considering this issue, one question is whether more than one forward drive shift lever position is required. First, it is our opinion that Standard No. 102 does not require more than one forward drive shift lever position. Section S3.1.2's requirement that "one forward drive position" must provide a greater degree of engine braking than the highest speed transmission ratio at vehicle speeds below 25 mph can be met by a vehicle with only one forward drive position if that position always provides such engine braking at the specified speeds . This would, of course, presuppose automatic downshifting . The requirements of section S3.1.2 can be met by automatic downshifting so long as such downshifting always takes place at a speed no lower than 25 mph. If automatic downshifting took place at a speed below 25 mph and manual downshifting has not possible, the requirement would not be met for some speeds below 25 mph.

With this background in mind, I will address the transmission described above with respect to section S3.1.2. The "highest speed transmission ratio" of the vehicle is "drive." We note that your letter does not indicate whether "second" gear provides a gr eater degree of engine braking than "drive." However, your letter does state that "first" gear provides a greater degree of engine braking than "drive" and that the vehicle will either automatically be in first gear, or can manually be downshifted to fir st gear, for all speeds at and below 25 mph. Thus, one forward drive position (either "first" by virtue of manual downshifting or the standard position by virtue of automatic downshifting) would provide a greater degree of engine braking than the highest speed transmission ratio ("drive") at all vehicle speeds below 25 mph.

Your second question is whether the availability of forced, manual downshifting above 25 mph is relevant to compliance with Standard No. 102. Such availability could be relevant, depending on the design. As indicated above, for example. if automatic down shifting took place at a speed below 25 mph, it would be necessary to provide manual downshifting at or above 25 mph in order to ensure that the requirements of section 53.1.2 be met for all speeds below 25 mph.

The answer to your third question, whether the standard can be satisfied by virtue of automatic shifting of gears, is provided above. Similarly, the answer to your fourth question, whether more than one drive position can be counted toward meeting the re quirement for greater engine braking, is also provided above.

Your fifth question is how compliance is measured, since engine braking is not the same as net vehicle braking. We understand your use of the term "net vehicle braking" to refer to all vehicle braking forces other than those attributable to application o f the service and emergency brakes. These vehicle braking forces include engine braking and various parasitic drags, such as tire rolling resistance and aerodynamic drag. You also asked what guidance the agency has available for ensuring compliance. The National Traffic and Motor Vehicle Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. This process requires each manufacturer to exerci se due care in conducting the mathematical calculations, computer simulations or testing that form the basis for that certification. With respect to your specific question, manufacturers can use any or all of these techniques to analyze the engine brakin g capability of their vehicles. Such analysis can, among other things, separate out various other effects on braking, such as aerodynamic drag and tire rolling resistance.

Sincerely,

Erika Z. Jones Chief Counsel

Erika Jones, Esquire Chief Counsel National Highway Traffic Safety Administration U.S. Department of Transportation 400 Seventh Street. S.W.

Washington, D.C. 20590

Re: Interpretation of Federal Motor Vehicle Safety Standard No. 102 (49 C.F.R. S 571.102)

Dear Ms. Jones:

On behalf of a manufacturer of transmissions for use in buses, we hereby request an interpretation of Federal Motor Vehicle Standard No. 102, paragraph S3. 1.2 of which states that:

In vehicles having more than one forward transmission gear ratio, one forward drive position shall provide a greater degree of engine braking than the highest speed transmission ratio at vehicle speeds below 25 miles per hour.

In the transmission at issue, downshift occurs automatically from "drive" to "second" at 29 m.p.h. and from "second" to "first" gear at 13 m.p.h. Forced manual downshift is possible at and below 25 m.p.h. (from "second" to "first"). Thus, at speeds betwe en 13 and 29 m.p.h. , there is at least one forward drive position ("first") manually available which provides a greater degree of engine braking than does the gear then automatically in use ("second" ). At 13 m.p.h. and below, the transmission is automa tically in a gear ("first") that provides greater engine braking than would the highest speed transmission ratio if that position ("drive" ) were available at such low speeds. Of course, in the lowest gear, there is no lower gear available which would pr ovide greater engine braking effect.

Erika Jones, Esquire September 29, 1986 Page 2

Our questions are:

1. Does the system described comply with Standard 102?

2. Is the availability of forced, manual down- shifting above 25 m.p.h. relevant to compliance with Standard 102?

3. Is the standard satisfied by virtue of the automatic shifting of gears as described or does it require the availability under any circumstances of forced, manual downshifting of gears at or below 25 m.p.h.?

Would a transmission that shifts automatically from "drive" to "second" at 29 m.p.h. (and from "second" to "first" at 13 m.p.h.) comply?

If not, and manual down-shifting to a gear with greater engine braking effect must be available, at what speed must such manual (or automatic) downshifting be available -- at 25 m.p.h., or at any speed "below" 25 m.p.h., e.g.,24m.p.h.?

4. Must the requirement of greater engine braking effect be fulfilled by one (and only one ) forward drive position, or may two drive positions (providing greater engine braking effect than the "drive" position) be utilized?

5. Since engine braking is not the same as net vehicle braking, how is compliance to be measured? What guidance does the agency have available for ensuring compliance?

Thank you for considering these questions and providing an opinion.

Sincerely,

Jack Quinn Terri Southwick