ID: 16856-1.pja

Mr. Gerald W. Remillard
President
Best Trailer Corporation
3614 Badger Road
Kewaskum, WI 53040

Dear Mr. Remillard:

This responds to your letter requesting an interpretation of whether two tilt bed trailer designs that your company is considering manufacturing would be excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, trailer design #1 probably is excluded as a low chassis vehicle, while trailer design #2 is not excluded, and a compliant underride guard would need to be provided.

Although you did not give bed height dimensions, the diagrams on the literature you enclosed with your letter indicate that the bottom of the bed on both vehicles is more than 560 mm above the ground. Design #1 has at the rear of the bed a full width vertical cross member, which you refer to as a rear channel, with the tail lamps set within it. This channel extends below the lower surface of the bed of the trailer and you state that its bottom surface is less than 560 mm above the ground. There are also two flip up approach ramps, which you refer to as "flipper ramps," that bridge the gap between the ground and the bed when the trailer bed is tilted, and flip over and lie on top of the trailer bed during transit. Design # 2 has at the back of the bed a triangular full width "approach ramp" that allows cargo equipment to transition from the ground up onto the bed without encountering the "bump" of the edge of the bed. When the bed is placed into the horizontal position, for transit, the approach ramp is mechanically or pneumatically lowered to hang from the rear of the trailer in a near vertical position in which the lower edge of the plate is less than 560 mm above the ground.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are low chassis vehicles and special purpose vehicles.

Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your vehicles that may meet these configuration requirements is the rear channel of Design #1 and the approach ramp of Design #2, so the question becomes whether these are considered to be part of the "chassis" of the vehicles. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. Generally, this means that the structure would have to contribute to supporting the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. Moveable components may "lock" into the frame structure sufficiently that they are integral with other frame members-in this situation NHTSA may consider the combined components to be one frame unit. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

We conclude that the rear channel of Design #1 is part of the chassis. It directly supports the load of the trailer. The rear channel is an integral part of the overall frame structure of the trailer. It is of similar size and strength to the other structural members such as the side rails, and it helps define the boundary of the trailer bed. Since a chassis member meets the configurational requirements of S5.1.1 through S5.1.3, Design #1 is excluded from the underride guard regulations.

Applying these principles to your Design #2, we find that the approach ramp is not part of the chassis. The approach ramp does not meet the "load supporting" aspect of the chassis definition because the approach ramp does not contribute to supporting cargo load. The ramp is also not part of the frame structure of the trailer. The approach ramp does not define the shape of the trailer. Instead, it hangs down from the rear end of the trailer, forming a protrusion from the outline of the trailer bed. Neither the approach plate nor the steel plate arms attaching the approach plate to the sides of the trailer bed are of a similar size or strength to the other frame components. The approach plate is not locked into another frame structural member in any manner, and is not considered integral with another frame member. In consideration of these factors the approach ramp it is not part of the frame structure, but an attachment. The approach ramp is not part of the chassis, and Design #2 is not a low chassis vehicle.

We turn now to the question of whether Design #2 is excluded as a special purpose vehicle. A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽¹⁾ Again, the approach ramp is the only part of your Design #2 trailer that, while the vehicle is in transit, resides in the area that could be occupied be the rear underride guard. Therefore, the approach ramp would have to be considered work-performing equipment for the trailer to be excluded.

There is no definition in the standard for "work-performing equipment." In determining the meaning of regulatory language, the first place the agency looks is the plain meaning of the words. In the context which is relevant to this safety standard, "work" is defined as "the transfer of energy from one physical system to another; especially, the transfer of energy to a body by the application of force . . ." "Perform" is defined as "to begin and carry through to completion; do." American Heritage Dictionary of the English Language, 1971. Taken together, NHTSA interprets the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. Approach ramps do not perform work in this sense because they merely form a ramp between the ground and the vehicle driving onto the tilt bed.⁽²⁾ Therefore, the approach ramp is not work-performing equipment, and the vehicle does not meet the definition of a special purpose vehicle.

Since your trailer does not meet the definition of an excluded category, it would have to be equipped with an underride guard meeting our standards. We cannot provide specific guidance on how your Design #2 trailer might be redesigned to accommodate a guard. We note, however, that other manufacturers of tilt bed trailers have told us that they have found engineering solutions that would meet the requirements of the standard without compromising the function of their vehicles. Some of them are using guard designs that deploy when in the flatbed configuration and automatically retract when in the tilted configuration.

Another option to consider is whether your approach ramp could "be" the guard. The approach plate already appears to meet the configurational requirements for an underride guard. If it does not currently meet the strength and energy absorption requirements, you might be able to reinforce or otherwise modify the approach ramp sufficiently so that it would pass these requirements. If you can do this, the approach ramp itself could be labeled and certified as a guard under Standard No. 223, Rear impact guards. Perhaps some of these solutions would work for you, as they have for other manufacturers of tilt bed trailers. We emphasize that you, as the manufacturer of the vehicle, are responsible for the vehicle's compliance.

If you have difficulty redesigning your trailer, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:224
d.5/22/98

1. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

2. To the extent that this interpretation is inconsistent with interpretation letters to Mr. Thomas M. Joyce and Mr. R. H. Anderson of Landoll Corporation, interpreting the frame rails of tilt bed trailers as work-performing equipment, those prior interpretations are superceded. The basic answer in those letters did not depend on this point, and the analysis in this letter is more thorough.

ID: 16857.drn

Mr. Howard Magor
Chairman
Aluminum Body Corporation
1600 W. Washington Blvd.
P.O. Box 40
Montebello, CA 90640

Dear Mr. Magor:

This responds to your request for an interpretation whether your company's special purpose aluminum body enclosures, used to provide security and environmental control for electronic systems, are motor vehicles. As explained below, the answer is no.

Your letter states that your enclosures are designed to protect equipment used for data acquisition, satellite monitoring and launch control, earth links, virtual reality training devices, data transmission, and for ground systems such as telescopes and aircraft landing systems. You state that although the enclosures "utilize a semi-trailer format" and are built with commercial trailer undercarriages, they are "for the most part" designed for use on fixed sites. The enclosures' use on the highway "is only incidental to their primary purpose." You further wrote that the enclosures are usually pre-positioned, and supported by four or more leveling jacks, when on the site. The jacks provide stability for the equipment in the enclosures.

In a telephone conversation with Dorothy Nakama of my staff, you explained that once on a work site, the enclosures tend to stay there for months. Your customers move the enclosures only to get to the next job, which is also usually of long duration. You stated that you are aware of an instance where one of your enclosures was placed at the end of an airport runway for several years.

NHTSA's regulations apply only to "motor vehicles," within the meaning of 49 U.S.C. 30102(a)(6). That section defines "motor vehicle" as:

a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

Based on your description, we believe that your company's enclosures are not motor vehicles. This is based on the use of the vehicles. The on-highway use of the product is similar to that of mobile construction equipment, such as cranes and scrapers, which the agency has determined are not "motor vehicles." Such equipment typically spend extended periods of time at a single job site and use the highway only to move between job sites. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. (In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of NHTSA's statute, since the on-highway use is more than "incidental.") Your enclosures stay on job sites for extended periods of time (usually for months) and only use the highway to move from site to site. Because their use of the highway is merely incidental and is not the primary purpose for which the vehicles were manufactured, the enclosures are not motor vehicles.

Because they are not motor vehicles, your enclosures need not meet the Federal motor vehicle safety standards (49 CFR Part 571), or any other NHTSA regulation. I note that, if the agency were to receive additional information indicating that the enclosures use the roads more than on an incidental basis, then the agency would reassess this interpretation.

Please note that because a State may require equipment such as your enclosures to be registered, you may wish to contact the State in which your product will be sold or used about any State requirements that may apply.

I hope this information is helpful. If you have any questions, please contact Dorothy Nakama at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.2/24/98

ID: 16859.wkm

Mr. Donald L. Busey
Director of Dealer Services
Pennsylvania Automotive Association
1925 North Front Street
Post Office Box 2955
Harrisburg, PA 17105-2955

Dear Mr. Busey:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked whether a tractor that is converted to a straight truck is required to be equipped with an antilock brake system (ABS) as required by Federal Motor Vehicle Safety Standard (Standard) No. 121, Air Brake Systems (49 Code of Federal Regulations (CFR) 571.121). In a telephone conversation with Mr. Myers on April 3, 1998, you stated that the trucks in question are new Mack tractors equipped with 3 axles with a 4th new axle normally added in the conversion, and that most are converted to dump or cement trucks.

By way of background information, Chapter 301 of Title 49, U. S. Code (hereinafter Safety Act) authorizes this agency to establish Federal motor vehicle safety standards (FMVSS) for new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system under which manufacturers certify that their products comply with all applicable FMVSSs. This agency enforces the standards after the fact by purchasing vehicles and equipment and testing them for compliance with the standards. The agency also investigates defects relating to motor vehicle safety. If the vehicles or equipment pass, no further action is taken. If they do not pass, or if a manufacturer or the National Highway Traffic Safety Administration (NHTSA) determines that a noncompliance or a safety-related defect exists, the manufacturer must notify the purchasers of the noncomplying or defective product and remedy the problem at no expense to the consumer. Any manufacturer that fails to provide notification of or remedy for a noncompliance or defect may be subject to substantial civil penalties.

NHTSA considers that a motor vehicle or item of equipment is "new" from the date of its manufacture until its first retail sale. Vehicle manufacturers are required to certify that each new vehicle they produce complies, as of the date of manufacture, with all then-applicable FMVSSs. In this case, if a new tractor is converted to a straight truck prior to the vehicle's first retail sale, the company making the conversion would be considered an "alterer" under our regulations. A person who alters a previously certified new vehicle must further certify that the vehicle as altered continues to comply with all applicable FMVSSs. See 49 CFR 567.7 (copy enclosed).

Subparagraph S5.1.6.1(a) of Standard No. 121 requires single-unit vehicles, including "straight trucks," manufactured on or after March 1, 1998 to be equipped with ABS that directly controls the wheels of at least one front axle and the wheels of at least one rear axle. Other axles on the vehicle may be indirectly controlled by the ABS. With respect to truck tractors, subparagraph S5.1.6.1(b) requires that truck tractors manufactured on or after March 1, 1997 be equipped with ABS that directly controls the wheels of at least one front axle and those of at least one rear axle, with the wheels of at least one axle being independently controlled. Again, other axles may be indirectly controlled by ABS.

Under Part 567, an alterer of a tractor manufactured on or after March 1, 1997 must allow the original certification label required by Part 567 to remain on the vehicle, and shall affix an additional label to the vehicle certifying that the vehicle conforms to all applicable FMVSSs affected by the alteration and in effect on a date no earlier than the original date of manufacture nor later than the date the alterations were completed. Thus, if a tractor is altered to a straight truck, the alterer must certify that it meets all applicable FMVSSs for straight trucks as of a date no earlier than the date of manufacture of the tractor nor later than the date of completion of the alteration, or any date in between. If this date is before March 1, 1998, the straight truck would not be required to be equipped with ABS. Further, if either the gross vehicle weight rating or any gross axle weight rating, as altered, are different from those shown on the original certification label, the alterer must provide those modified values.

Also enclosed for your information are fact sheets entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or fax at (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Ref:121#VSA#571
d.5/13/98

ID: 16867.ztv

Mr. Clarence Ogrodnick
Power Deck Systems, Inc.
5633 Birch Avenue
Vegreville
Alberta T9C 1J7
Canada

Dear Mr. Ogrodnick:

This is in reply to your fax sent to us on January 6, 1998. Your company manufactures "an after market product in North America . . . a hydraulic power deck made to load and unload cargo such as snowmobiles . . . ." The deck "mounts into the box on all makes of regular shortbox and longbox pick up trucks." You wish to ensure that it meets U.S. Federal regulations "as to width, height, length, and light location specifications" so that you can be certain that your product "is safe and legal everywhere."

There are no U.S. Federal regulations that govern the width, height, and length of your after market hydraulic power deck. Furthermore, as a general rule, the laws that govern the use of after market equipment are those of the individual States, rather than Federal law. As we are not conversant with the laws of the States, I am afraid we cannot advise you on them.

If the hydraulic power deck is added to the pickup truck by a "manufacturer, distributor, dealer, or motor vehicle repair business," under our law this modification must not create a noncompliance with Federal lighting requirements (or any other Federal motor vehicle safety standard with which the truck was manufactured to conform). Removal or obscuration of the lamp are the two principal ways in which noncompliances are created. The addition of a supplementary lamp performing the function of the original in approximately the same location is a way of ensuring that original equipment requirements continue to be met. Note that this compliance restriction applies only to the four entities named, and not to a vehicle owner who installs a power deck without the assistance of a "manufacturer, dealer, distributor or motor vehicle repair business."

If you have any questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.1/30/98

ID: 169-n-b

Note Book 168

FEDERAL REGISTER NOTICES

Note Book 165

FEDERAL REGISTER NOTICES

ID: 16907-1.pja

Mr. Jason Backs
VP Operations
CPS Trailers
Highway 77, P.O. Drawer K
Oran, MO 63771

Dear Mr. Backs:

This responds to your letter requesting an interpretation of whether the bottom dump trailer that your company manufactures with a large push block at the rear would be excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, your trailer is not excluded but, assuming you are attaching an underride guard to the push block in the location that you drew on your diagram, your vehicle may already comply with our regulations.

Your letter attached a diagram of your bottom dump trailer. Attached to the rear and extending 25 inches behind the rear of the trailer is a push block, used by bulldozers to push the trailer out of soft ground at construction sites. Viewed from above, the push block shaped like a trapezoid with its long side attached to the trailer. It tapers to a width of 28 inches at its rear, which is 28 inches off the ground. Eleven inches forward of its rear a guard-shaped structure, which you refer to as the horizontal member of the push block, is attached to the bottom of the push block. The bottom of the guard-shaped structure is 19 3/4 inches above the ground. Based on a conversation with David Coleman of NHTSA's Office of Vehicle Safety Compliance,⁽¹⁾ you believe that the trailer is excluded from our regulations because it meets the definitions of two classes of excluded vehicles: the low chassis vehicle and the special purpose vehicle.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are low chassis vehicles and special purpose vehicles.

Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your vehicle that meets these configuration requirements is the guard-shaped structure attached to the underside of the push block⁽²⁾, so the question becomes whether this is considered to be part of the "chassis" of the vehicles. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. For most trailers that carry things, this means that the structure would have to contribute to providing underlying support for the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

Applying these principles to the horizontal member of your push block, we find that it is not part of the chassis. Although the push block and presumably also the guard-like structure are strongly attached to the chassis, they do not contribute to supporting cargo load. The push block itself is not part of the frame structure of the trailer, it is an attachment. Although you imply that the guard-like structure attached to the bottom of the push block is part of the push block, we consider it to be another attachment (to the push block). It does not define the outline of the trailer, but projects downward from an attachment to the rear of the chassis. Therefore, it is not part of the chassis, and the bottom dump trailer is not a low chassis vehicle.

We turn now to the question of whether the bottom dump trailer is excluded as a special purpose vehicle. A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽³⁾ Again, the guard-like structure on the underside of the push block is the only part of your trailer that, while the vehicle is in transit, resides in the area that could be occupied be the rear underride guard. Therefore, it would have to be considered work-performing equipment for the trailer to be excluded.

There is no definition in the standard for "work-performing equipment." In determining the meaning of regulatory language, the first place the agency looks is the plain meaning of the words. In the context which is relevant to this safety standard, "work" is defined as "the transfer of energy from one physical system to another; especially, the transfer of energy to a body by the application of force . . ." "Perform" is defined as "to begin and carry through to completion; do." American Heritage Dictionary of the English Language, 1971. Taken together, NHTSA interprets the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. The guard-like structure does not perform work in this sense. Its function is unclear. Even the push block does not perform work. Its function is to merely transmit the force of the bulldozer blade to the chassis of the trailer. Therefore, the guard like structure is not work-performing equipment, and the bottom dump trailer does not meet the definition of a special purpose vehicle. An underride guard would have to be provided on this vehicle.

However, your bottom dump trailer may already comply with the rule. You made several correct observations in your letter regarding the determination of the rear and side extremities. The rear extremity is defined in S4 of Standard No. 224 as " the rearmost point on the vehicle . . ." (not the chassis). Therefore, it coincides with the rearmost point on the push block. The side extremity is defined in S4 as "the outermost point on the vehicle's side that is located . . . between a transverse vertical plane tangent to the rear extremity of the vehicle and a transverse vertical plane located 305 mm forward of that plane." Since your push block tapers toward the rear, the side extremity coincides with the outer edges of the push block in a transverse plane one foot forward of the rear extremity. The bottom of the guard-like device extends to the side extremities and the 21 inch ground clearance meets the vertical height requirements of S5.1.2. Assuming the face of the horizontal member of the guard-like structure is at least 100 mm high, as required by S5.1 of Standard No. 223, the guard-like structure would meet all the configuration requirements of an underride guard. If it can pass the strength and energy absorption requirements as well, the guard like structure itself could be labeled and certified as a guard under Standard No. 223.

If you have difficulty meeting these requirements, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:224
d.5/22/98

1. We note that the Chief Counsel's Office is the only office in the agency that can issue interpretations of our regulations.

2. The push block itself is too high to meet the maximum height requirement of S5.1.2.

3. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

ID: 16908.nhf

Ms. Connie L. Stauffer
President
Lift-Aids, Inc.June 2, 1998
2381 Pecan Court
Fort Worth, TX 76117

Dear Ms. Stauffer:

This responds to your request for a letter stating that the agency will not enforce the "make inoperative" provision against you for modifying a Ford Windstar Minivan to accommodate your client who has a disability. I apologize for the delay in my response. In your letter, you stated that you need to replace the vehicle's original steering column and air bag with a horizontal steering column and steering control manufactured by Drive Master Corporation to accommodate your client who suffers from the disability "osteogenesis imperfecta," more commonly known as brittle bone disease. You explained that, due to her disability, your client is very small in stature and has limited mobility.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) will not institute enforcement proceedings against a commercial entity that modifies the steering wheel and column on a vehicle to accommodate the condition you described.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Removing the original steering column and replacing it with a horizontal steering column could affect compliance with three standards: Standard No. 203, Impact protection for the driver from the steering control system, Standard No. 204, Steering control rearward displacement, and Standard No. 208, Occupant Crash Protection. For example, Standard No. 208 requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the steering wheel and the driver's air bag would affect the vehicle's compliance with Standard No. 208. In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering column and air bag to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to disarm the air bag. The manufacturer should be able to provide information on how the modification can be safely performed. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.5/22/98

ID: 1691y

The Honorable Howard Wolpe
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Wolpe:

Thank you for your letter to former Secretary Burnley on behalf of your constituent, Mr. Dennis Furr of Lansing, Michigan. I've been asked to respond to your letter since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety.

Mr. Furr is concerned about the potential safety problems that may result if school bus seats are being overloaded. In particular, Mr. Furr asks whether NHTSA's Highway Safety Program Guideline (HSPG) No. 17, Pupil Transportation Safety (23 CFR /1204.4), is consistent with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School Bus Passenger Seating and Crash Protection (49 CFR /571.222), with regard to seating specifications. Mr. Furr is particularly interested in how manufacturers are calculating the number of seating positions on a bench seat.

I am pleased to address your constituent's concerns. Before I begin, I want to note that we have answered a number of similar inquiries from Mr. Furr in past years.

We have two sets of "regulations" for school buses. The first, issued under the Vehicle Safety Act, includes our motor vehicle safety standards which apply to the manufacture and sale of new school buses. Compliance with these standards is mandatory for new vehicle manufacturers, and is enforced by this agency with civil penalties. FMVSS No. 222, with which your constituent is concerned, is one such safety standard. The second set of "regulations," or guidelines, for school buses was issued under the Highway Safety Act. Guidelines issued under this Act are not mandatory for the states; rather, they are recommended practices. Highway Safety Program Guideline No. 17, to which Mr. Furr frequently refers in his letter, consists of recommendations to the States for operating their school buses and pertains to Federal funding of State highway safety programs.

Both FMVSS No. 222 and Guideline No. 17 contain specifications for school bus seating. Paragraph S4.1 of FMVSS No. 222 states: "The number of seating positions considered to be in a bench seat is expressed by the symbol W, and calculated as the bench width in inches divided by 15 and rounded to the nearest whole number." The guideline for seating accommodations in HSPG 17 states:

Seating should be provided that will permit each occupant to sit in a seat in a plan view lateral location, intended by the manufacturers to provide seating accommodation for a person at least as large as a 5th percentile adult female, as defined in 49 CFR 571.3.

Mr. Furr appears to see a conflict between the formula used in calculating the forces to be applied to the seats of large school buses under FMVSS No. 222, on the one hand, and the use by States and manufacturers of 13-inch seating positions for rating the capacity of a 39-inch seat, on the other hand. I believe that Mr. Furr's belief in the existence of a conflict rests on a misunderstanding.

We view Standard No. 222 and HSPG 17 as complementary, not inconsistent. HSPG 17 reflects NHTSA's belief that all school bus passengers should be seated in the interest of safety. To that end, the guideline provides that there should be a seating position for each passenger and that the position should be at least large enough to accommodate a 5th percentile adult female. The hip width (sitting) of a 5th percentile adult female is 12.8 inches.

The figure "15" in FMVSS No. 222's compliance formula is not a minimum requirement for the width of a seating position. It is the number which is used to establish the number of designated seating positions and ensures that the forces applied to the seat during compliance tests are reasonable reflections of the crash forces that would be involved in a real-world crash. It is also the number which ensures that the width of the smallest seat is approximately equal to the hip width of the 5th percentile female. That is consistent with HSPG 17 which provides that seating positions shall be at least large enough for a 5th percentile female. Use of the figure "15" in the FMVSS No. 222 formula results in a minimum seating position width of 12.67 inches (for a 38-inch wide seat.) That is only slightly smaller than the 12.8 inch hip width of the 5th percentile female. For a 39-inch wide seat, the single position width is 13 inches, which is slightly larger than the hip width of a 5th percentile female.

It should be remembered, however, that the number of seating positions derived from the FMVSS No. 222 formula is not meant to be a measure of the absolute capacity of the bus for all size occupants. We recognize that, in practice, school buses transport a tremendously wide variety of student sizes. For example, a bus that may be capable of easily accommodating 65 preschool or elementary students may be capable of carrying only 43 high school students. When the bus is used to transport students of widely varying ages and sizes, reasonable accommodations may vary between those values. The decision on how many passengers may be comfortably and safely accommodated, therefore, is a decision that must be reached by the bus operator, in light of the ages and sizes of passengers involved.

NHTSA does not have the authority under either the Highway Safety Act or Vehicle Safety Act to regulate how States use school buses. Therefore, NHTSA could not preclude a State from carrying more passengers on a bench seat than there are designated seating positions. However, this agency agrees with Mr. Furr that a student should not sit on a seat unless the student can sit fully on the seat instead of sitting only partially on the seat and thus only being partially protected by the compartmentalization. We believe that Mr. Furr's concerns as they apply to public schools would be best addressed by his working with the local school board and state officials.

Mr. Furr is also concerned about a reference in our occupant crash protection standard (No. 208) to a 95th-percentile adult male occupant size. He asks why FMVSS No. 222 uses a 15-inch seat dimension, when FMVSS No. 208 references the 95th-percentile adult male occupant size in specifying occupant sizes which safety belts must adjust to fit.

Both FMVSS No. 208 and FMVSS No. 222 are directed at providing occupant crash protection. Both of these standards set forth comprehensive requirements that are directed at protecting occupants likely to be inside a vehicle in a crash. With regard to school buses, the agency determined that the crash protection requirements should be developed taking into account the full size range of passengers typically riding on school buses. If we designed the force and deflection (energy-absorbing) characteristics of the seats for the 95th percentile males, the seats may be too stiff for a small child.

Finally, Mr. Furr asks whether, when voluntarily installing safety belts on large school buses, States are violating Federal law by using S4.1 of FMVSS No. 222 in determining how many positions (and belts) there are on a bench seat. The answer is no. FMVSS No. 222 requires safety belts only for the passenger positions of small (10,000 pounds or less GVWR) school buses. Under S5 of the standard, belts on a small school bus bench seat are installed at "W" seating positions, as determined under S4.1. If a State wishes to order belts on its new large school bus and to use the same method for determining the number of belts to be installed, the State may do so.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact me.

Sincerely,

Diane K. Steed /ref:VSA#222 d:2/23/89

ID: 16926.drn

Mr. Esko Lammervo
Marketing Manager
OY Talmu AB
FIN-24100 Salo
Finland

Dear Mr. Lammervo:

This responds to your letter asking whether your company's (Talmu's) warning triangles are excluded from Federal Motor Vehicle Safety Standard No. 125, Warning Devices. You state that some of your customers, European car manufacturers, are interested in using Talmu triangles in cars that will be exported to the United States. As explained below, because your warning triangles are designed to be carried in motor vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds (lb.) or less, they are excluded from the standard. However, since your product is "motor vehicle equipment," your company Talmu, as the manufacturer, may be subject to NHTSA's laws as described below.

NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Effective October 31, 1994, NHTSA amended Standard No. 125 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a GVWR greater than 10,000 lb. (See 59 FR 49586; September 29, 1994, copy enclosed.) If sold for use with buses and trucks with a GVWR greater than 10,000 lb., your company's warning triangles must meet Standard No. 125's detailed specifications for a warning device. However, if the warning triangle is sold for use with vehicles with a GVWR of 10,000 lb. or less, Standard No. 125 would not apply.

Bear in mind, however, that even if excluded from Standard No. 125, your warning triangle, as an item of "motor vehicle equipment," is regulated by NHTSA. Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If a manufacturer or NHTSA should determine 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. (This responsibility is borne by the vehicle manufacturer in cases in which your devices are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:125#VSA
d.2/26/98

ID: 16957.wkm

Mr. Lewis W. Hopkins
President, Auto-Trans
Post Office Box 771118
Memphis, TN 38177

Dear Mr. Hopkins:

This responds to your letter of January 14, 1998, addressed to Walter Myers of this office asking us to review your "Land Ferry" system, also called the Auto-Trans, and asking for "preliminary National Highway Traffic Safety Administration (NHTSA) approval for this alternative mode of interstate highway transportation." Please be advised that this agency does not grant such approvals, as explained below. In addition, your letter was styled "Confidential." However, when Mr. Myers explained to you in a telephone conversation on March 6, 1998 that we cannot give confidential interpretation letters, you withdrew your request for confidential treatment.

NHTSA has the statutory authority to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment (see 49 U.S. Code, Chapter 301). The FMVSSs apply to motor vehicles and equipment up to the first retail sale of such vehicles or equipment. Once a vehicle or item of equipment is sold to its first retail customer, NHTSA's authority terminates, with certain exceptions, and the use of that product becomes a matter of state jurisdiction. The law establishes a self-certification system in which manufacturers themselves certify that their products comply with all applicable FMVSSs. NHTSA enforces compliance with the standards by purchasing motor vehicles and equipment and testing them for compliance with applicable standards. NHTSA also investigates safety-related defects in motor vehicles and equipment. In view of the self-certification system, NHTSA neither approves, disapproves, tests, endorses, nor grants clearances for products prior to their introduction into the retail market.

The term "motor vehicle" is defined in 49 U. S. Code 30102(a)(6) as:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

With respect to the Auto-Trans, based on your description and the drawing you enclosed with your letter, both the tractor (driven by mechanical power) and the trailer (drawn by mechanical power), would be classified as motor vehicles. Thus, both parts of the unit would, when manufactured, be required to be certified by their manufacturer(s) as complying with all applicable FMVSSs. As you already know from your correspondence with the Federal Highway Administration, the operation of your Auto-Trans in interstate commerce would be governed by the Federal Motor Carrier Safety Regulations and the requirements of individual states through which your Auto-Trans operates.

Enclosed for your information are fact sheets prepared by this office entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, Where to Obtain NHTSA's Safety Standards and Regulations, and Federal Requirements for Manufacturers of Trailers.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures
Ref:VSA
d.4/29/98