ID: nht67-1.6

DATE: 09/12/67

FROM: AUTHOR UNAVAILABLE; George C. Nield; NHTSA

TO: Blue Bird Body Company

TITLE: FMVSS INTERPRETATION

TEXT: Your June 2, 1967, letter contained nine questions concerning several areas of Public Law 89-563 and Motor Vehicle Safety Standard No. 108. Answers to several of these questions are of common interest to many manufacturers and the National Highway Safety Bureau is developing and planning to issue appropriate policies, procedures and rules to guide manufacturers in respect to some of these questions. In the meantime, we are able to reply to questions 5, 7, and 8 of the June 2, 1967, letter and question 9 of the June 2, 1967, letter as amended by the corrected drawings furnished by your letter of July 18, 1967.

Question 5. Section 113 of Public Law 89-563

Will forms be furnished to us to use to notify the first purchaser, dealer, and Secretary of defects we might find? If not, will an example of an acceptable form be available? Will a more detailed procedure be made available on the action required under Section 113? What would be our liability if a component purchased by us and certified to us to be in conformance with the Motor Vehicle Safety Standards was found after manufacture and delivery not to be in conformance?

Answer

The Bureau is studying the requirements for procedures and forms on defect notification. At present a form is being considered for the manufacturers to report defect information to the Secretary. If after further study forms are also considered desirable for the manufacturer to report to his dealers and the purchasers, you will be advised as to what types of forms are acceptable via publication in the Federal Register.

It is not clear what you mean by "liability." If you refer to your obligations under Section III, this section defines the responsibilities of manufacturers in regard to motor vehicles or items of motor vehicle equipment determined not to be in conformance with applicable Federal motor vehicle safety standards. Section III also requires the immediate repurchase of the nonconforming vehicle or item of motor vehicle equipment, or that the required conforming part or parts of equipment be furnished to the dealer or distributor for installation and that financial renumeration be made for incoveniences involved. Additionally, the provisions of Section 108 would apply.

Question 7. Title 23, Section 255.7 Applicability:

"(b) Military vehicles. No standard applies to a vehicle or item of equipment manufactured for, and sold directly to, the Armed Forces of the United States in conformity with Contractual specifications.

(c) Export. No standard applies to a vehicle or item of equipment in the circumstance provided in section 108 (b) (5) of the Act (15 U.S.C. 1397) (b) (5)."

We understand that the standard does not apply to military or export vehicles. Will we be allowed to drive on public roads export and/or military buses that do not meet the minimum standards to a port or other destination? If not, what will we have to do to them so that they can be driven on public roads?

Answer

Motor vehicles intended solely for military or for export use are specifically excluded from compliance with Federal motor vehicle standards, and therefore not subject to the provisions of the Act.

Question 8. Standard No. 108 S3.4.3

"Taillamps, license plate lamps, and side marker lamps shall be illuminated when the headlamps are illuminated."

This standard does not mention parking lamps. We would then assume that the parking lamps may or may not be illuminated when the headlamps are illuminated at our discretion or the chassis manufacturer's discretion. Is this correct?

Answer

The parking lamps may or may not be illuminated when the headlamps are illuminated.

Question 9. Standard No. 103 Table II Location of Equipment

These prints show the location of lamps and reflex reflectors we plan to supply to comply with Standard 108 Table II. Are these locations in compliance? If not, please mark one each of the prints with acceptable locations and return them to us.

Answer

The location of lamps and reflectors, as shown on the drawings dated July 17, 1967, appear to be acceptable.

Questions 1, 2, and 6 relate to the subject of "Incomplete vehicles" and questions 3 and 4 relate to labeling and record-keeping. We are currently working on the entire area relating to these other questions and you will be furnished with detailed answers as soon as possible.

Sincerely,

ATTACH.

June 2, 1967

George C. Nield -- Acting Director, Motor Vehicle Safety Performance Service, U. S. Department of Transportation

Dear Mr. Nield: Listed below are several areas of Public Law 89-563 and the Motor Vehicle Safety Standards that we are concerned about and need rulings and/or clarification. If at all possible, we need this information by June 12, 1967.

1. Section 108 of Public Law 89-563

It is quite possible that there might be new chassis at our plant January 1, 1968, to have new bodies mounted on them that do not meet the Motor Vehicle Safety Standards. Will we be able to mount bodies on these? From time to time it is a couple of months after a chassis arrives before a body is mounted on it. They also sometimes sit in our field for long periods of time finished before the end customer comes for them or arranges for delivery. I believe you can appreciate the situation we could find ourselves in if we are unable to mount or deliver chassis after January 1, 1968, that were received prior to January 1, 1968. Could we have your comments and a ruling on this?

2. Section 108 of Public Law 89-563 Paragraph (a) (1)

Will replacement parts for buses built prior to January 1, 1968, have to meet applicable Motor Vehicle Safety Standards? In some cases the conforming parts might not fit or work without a lot of rework, etc.

3. Section 108 of Public Law 89-563 (b) (5)

In what manner should we label or tag motor vehicles or items of motor vehicle equipment intended solely for export? Do you have examples or acceptable forms for this?

4. Section 112 of Public Law 89-563

What records, reports, technical data, performance data, and other information are we required to establish and maintain? Will we be required to give notification of performance and technical data to the Secretary and/or to the original purchaser? What will we be expected to do to satisfy this law?

Will we be able to have inspectors designated by the Secretary come here prior to January 1, 1968, to be sure we are in compliance with all applicable Safety Standards if we feel the need?

5. Section 113 of Public Law 89-563

Will forms be furnished to us to use to notify the first purchaser, dealer, and Secretary of defects we might find? If not, will an example of an acceptable form be available? Will a more detailed procedure be made available on the action required under Section 113? What would be our liability if a component purchased by us and certified to us to be in conformance with the Motor Vehicle Safety Standards was found after manufacture and delivery not to be in conformance?

6. Section 114 of Public Law 89-563

We mount bodies on three types of chassis. We build the Blue Bird Forward Control Chassis. The Conventional and Pusher Chassis are built by others, and we mount bus bodies we manufacture on them. It seems logical to me that the chassis manufacturer should certify the chassis by label or tag as stated in the law. Is this correct? We would then be required to certify what? The bus body or the complete vehicle? I don't see how we could certify items such as those cited in Standard No. 102 which we would not alter in any way or some of the equipment in Standard No. 108 that comes in on the chassis that we would not bother such as headlamps. What should the certification tag or label say? Do you have forms or acceptable examples for this?

7. Title 23, Section 255.7 Applicability:

"(b) Military vehicles. No standard applies to a vehicle or item of equipment manufactured for, and sold directly to, the Armed Forces of the United States in conformity with contractual specifications.

(c) Export. No standard applies to a vehicle or item of equipment in the circumstances provided in section 108 (b) (5) of the Act (15 U.S.C. 1397 (b) (5)."

We understand that the standard does not apply to military or export vehicles. Will we be allowed to drive on public roads export and/or military buses that do not meet the minimum standards to a port or other destination? If not, what will we have to do to them so that they can be driven on public roads?

8. Standard No. 108 S3.4.3: "Taillamps, license plate lamps, and side marker lamps shall be illuminated when the headlamps are illuminated."

This standard does not mention parking lamps. We would then assume that the parking lamps may or may not be illuminated when the headlamps are illuminated at our discretion or the chassis manufacturer's discretion. Is this correct?

9. Standard No. 108 Table II Location of Equipment

Enclosed are two prints of

34754 Layout, Lamps and Reflex Reflector Locations, 1968 Model, 74" Headroom Conventional Bus

34755 Layout, Lamps and Reflex Reflector Locations, 1968 Model, 77" Headroom Conventional Bus

34756 Layout, Lamps and Reflex Reflector Locations, 1968 Model, 74" Headroom All American and Pusher Bus

34757 Layout, Lamps and Reflex Reflector Locations, 1968 Model, 77" Headroom All American and Pusher Bus

These prints show the location of lamps and reflex reflectors we plan to supply to comply with Standard 108 Table II. Are these locations in compliance? If not, please mark one each of the prints with acceptable locations and return them to us.

We certainly appreciate your help and consideration on these matters.

Sincerely, David A. Phelps, Jr. Engineering Services

Enclosures

ID: nht91-4.17

DATE: June 10, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Rosemary Dunlap -- President, Motor Voters

TITLE: None

ATTACHMT: Attached to letter dated 5-10-91 from Rosemary Dunlap to Jack Rice (OCC 6035)

TEXT:

This responds to your letter concerning bills under consideration by a number of states which would require disclosure concerning safety features in light trucks and vans and bumper strength. You stated that there is considerable debate about whether such bills would be preempted be Federal law, and noted that opponents have represented that a NHTSA spokesperson indicated that the states are preempted in this area. You stated that you have been unable to locate this statement, and asked whether NHTSA has an official opinion regarding Federal preemption and disclosure.

I believe that the statement you refer to was made by NHTSA's Associate Administrator for Rulemaking, Barry Felrice, at the July 1990 NHTSA Public/Industry Meeting. Mr. Felrice was responding to a question from the Center for Auto Safety. I have enclosed a copy of the relevant portion of the transcript for that meeting and the question.

As you can see from the transcript, Mr. Felrice did not say that states are necessarily preempted from establishing information disclosure requirements. In order to provide an opinion as whether a particular bill would be preempted, I would need to review the specific language of the bill.

I hope this information is helpful.

Attachment NHTSA MEMORANDUM

Subject: INFORMATION: Submittal to Docket Date: August 13, 1990 NHTSA/Industry

From: Barry Felrice Associate Administrator for Rulemaking

To: Docket Section THRU: Jack Rice Chief Counsel

Please insert in that Section of the Docket titled, "Rulemaking, Research and Enforcement Program: Public Meetings, the following:

1. Federal Register Notice 55 FR 25920 of June 25, 1990 - Notice of Meeting July 18, 1990, Ann Arbor, MI.

2. Agenda of Meeting

3. Submittal from Association of International Automobile Manufacturers, Inc, subject: "NHTSA/Industry Meeting - Agenda Items, July 18, 1990."

4. Letter dated July 10, 1990, from Center for Auto Safety, subject: "Questions for the July 18, 1990, NHTSA/Industry Meeting."

5. Letter dated July 9, 1990, from Motor Vehicle Manufacturers Association, subject: "Questions for NHTSA/Meeting, July 18, 1990.

6. Transcript of Proceedings for the NHTSA Industry Meeting on July 18, 1990.

Attachments

Agenda for NHTSA Industry Meeting Wednesday, July 18, 1990 Ann Arbor, Michigan

I. RULEMAKING

Q. MVMA

1. Attached is a list of unresolved petitions. Please advise as to their status and anticipated actions.

CRASHAVOIDANCE

Q. AIAM

1A. What is the status of NHTSA action on the petition that would require brake hydraulic system malfunction indication for fluid loss and/or pressure loss?

Q. MVMA

2. After review of petitions for reconsideration, does the agency expect to retain the current method of measuring turn signal/headlamp separation by amending the recent FMVSS 108 Final Rule (effective November, 1990)?

3. When does the agency plan to issue a Final Rule on Docket No.

89-24; Notice 1 (optional combinations of lamps)? What changes are expected from the NPRM?

4. When does the agency plan to issue a Final Rule on Docket No.

81-11; Notice 29 (amended humidity test procedure)? What changes are expected from the NPRM?

5. When will the next rulemaking action be taken and what will be the content regarding the adoption of roadway illumination specifications for forward lighting? (Docket 85-15, Notice 7)

Q. AIAM

6. NHTSA issued a final rule to require vehicles with automatic transmissions to be equipped with key-locking systems from September 1, 1992. Has the agency received any request for reconsideration of the requirements and does the agency have an intention to amend the regulation?

Q. MVMA

7. When does the agency plan to issue a SNPRM on brake harmonization? Please describe any expected changes from the previous notice.

Q. AIAM

51. Automobile manufacturers are well aware of the benefits of ABS systems and many are moving forward to adopt ABS for their model lineups. However, in the State of California, a bill, AB 4342 is currently being deliberated, which would make ABS mandatory for all vehicles 6,001 lbs unloaded vehicle weight. While the intent of the bill is a step for the better, we do believe that the bill may conflict with Section 103(d) of the Vehicle Safety Act.

Could NHTSA comment on whether this bill does come into conflict with Federal preemption of state laws as stated in Section 103(d)?

Q. MVMA

52. When is NHTSA planning to complete and make available the "EMERGENCY RESCUE GUIDELINES FOR AIR BAG-EQUIPPED VEHICLES"?

-How and when can copies be obtained?

-How will the "GUIDELINES" be announced and distributed, and to what organizations and mailing lists?

-To whom should individual requests be directed?

Q. CFAS

53. Because light trucks and vans (LTV's) need not meet the same safety standards as passenger cars, several states have proposed laws to require disclosure of standards that a particular LTV does or does not meet, and any effect on the owner's insurance rates. What is NHTSA's view on such state laws?

54. To what extent does NHTSA plan to continue soliciting the opinions of consumer groups in roundtable meetings, such as the recent one on rear seat shoulder belt installation?

TRANSCRIPT OF PROCEEDINGS

DEPARTMENT OF TRANSPORTATION

In the Matter of:

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION INDUSTRY MEETING

PAGES: 1 through 79 PLACE: Ann Arbor, Michigan DATE: July 18, 1990

HERITAGE REPORTING CORPORATION Official Reporters 1220 L. Street, N.W., Suite 600 Washington, D.C. 20805 (202) 623-4233

...regulate. So while we don't specifically require or address anti-lock in our standards, we think that a state law requiring anti-lock can be regarded as addressing the same aspect of performance as Standard 105 and therefore, would be preempted by our standard.

MR. SCHWENTKER: Don Schwentker from AIAM. One might argue that breaking is an aspect of performance quite apart from anti-lock breaking and that a breaking standard, itself, might be preempted like that.

MR. FELRICE: Could be. But we're willing right now to go even further than that. Like I said, breaking stability is regulated by Standard 105. So, without looking at the actual bill, you know, the lawyers think that such a law would be preempted by us.

MR. SCHWENTKER: Does NHTSA have any plans to communicate their feelings on that to California?

MR. FELRICE: No, not at this time. It would be premature.

Fifty two we talked about. Fifty three is another legal question. In this case, the states are requiring disclosure of information to consumers, in this case, light trucks and vans -- a label or something that says these vehicles do not meet all the same requirements that passenger cars do. I think we've seen similar laws here on the bumper performance.

This is a different case. Here we -- there is nothing in federal law that preempts or otherwise prohibits a state from establishing information disclosure requirements as long as the information is accurate and is not required to be affixed to the vehicle. And we think

there is federal preemption there but if a state wants to provide dealerships, provide point of sale information to consumers, or that there be information in an owner's manual, we believe that they have authority to do that.

And the second part of this question asks, what are our views on such state laws? We would hate to give any kind of opinion as to whether a particular state law was good or bad or if we agreed with it based on the specifics of that particular law and I really don't want to give a general statement that we disapprove of the states being in this area.

MR. DANA: Greg Dana, AIAM. About petitions -- did you just say as long as that information labeling requirement, whatever, is not attached to the vehicle?

MR. FELRICE: Yes.

As long as it is not required to be affixed to the vehicle. MR. DANA: All right.

MR. FELRICE: And what the legal cite for that particular aspect is I don't know and you can feel free to ask Jack Rice, our Chief Counsel, who said you can say this, Barry.

Now the last question asks, To what extent we plan to continue soliciting the opinions of consumer groups or others in round table meetings?

For instance, in a recent one, we had an issue about lap/shoulder belts. These will be done periodically. Jerry Curry wants to reach out a lot. We've had meetings with insurers, with manufacturers, consumer groups -- the rear seat lap shoulder belt meeting was an interesting one because we sort of had everybody there together: dealers, manufacturers, consumer groups and insurers. We don't have a particular time table that we'll do these. And probably -- I think everyone wants to do them once every six months, once every year, and I think we will continue to do that and as specific subjects come up, like rear seat lap shoulder belt retrofit kits that merit a specific meeting, we'll just call it then. So they will be continued but there is no specific schedule for doing that.

And I will answer any other questions.

MR. BENNETT: Milford Bennett, General Motors. Barry, a follow up on Item 22, Side Impact. BIOSID AND SID...

ID: nht95-7.62

TYPE: INTERPRETATION-NHTSA

DATE: December 21, 1995

FROM: Kenneth N. Weinstein -- Assistant Chief Counsel for Litigation, NHTSA

TO: Lewis H. Goldfarb, Esq. -- Assistant General Counsel, Chrysler Corporation

TITLE: Compliance of MY 1995 Cirrus/Stratus with Federal Motor Vehicle Safety Standard No. 210

ATTACHMT: 12/12/95 letter from Lewis H. Goldfarb to Kenneth Weinstein

TEXT: This responds to your letter of December 12, 1995, which transmitted a memorandum containing Chrysler Corporation's legal position on whether the National Highway Traffic Safety Administration (NHTSA) may rely on a July 11, 1995 compliance test to demonstrate that model year 1995 Chrysler Cirrus and Dodge Stratus vehicles fail to comply with Federal Motor Vehicle Safety Standard No. 210.

In the July 10 test, NHTSA's contractor placed the pelvic body block several inches forward from the seat back. n1 In that test, and in subsequent tests conducted by Chrysler with the body block in that location, the rear seat anchorage in the Cirrus/Stratus failed before the 3000 pound test load set out in S5.2 of Standard No. 210 was reached. Chrysler has submitted a summary report describing a recent test in which the anchorage did not fail when the body block was positioned against the seat back, which is the position that Chrysler customarily uses when it tests its vehicles to ascertain whether they comply with Standard No. 210. It is Chrysler's position that since "neither the procedures specified in the standard nor the published laboratory test protocol specify the location of the body block," its test with the body block against the seat should be accepted by NHTSA as demonstrating compliance with Standard No. 210.

n1 Your memorandum states on several occasions that the body block in the NHTSA test was placed four inches in front of the seat back. This distance represents the post-test location of the body block. In fact, the post-test photographs reveal that the floor structure had been distorted during the test procedure, thus indicating that the body block was less than four inches from the seat back prior to the test.

The agency agrees that neither the standard itself nor the laboratory test procedure developed by the Office of Vehicle Safety Compliance (OVSC) specifies a precise distance that the body block is to be placed in front of the seat back. However, rather than support Chrysler's argument, this fact demonstrates that the failure of the Cirrus anchorages to withstand the test loads in NHTSA's test reflects a noncompliance with the standard. In the preamble issued by the agency in connection with its 1991 reconsideration of several amendments to Standard No. 210, NHTSA reiterated its longstanding view of a manufacturer's compliance responsibilities under these circumstances (56 FR 63676, 63677; December 5, 1991):

As a general matter, when a standard does not specify a particular test condition, there is a presumption that the requirements of the standard must be met at all such test conditions. This presumption that the standard must be met at all positions of unspecified test conditions may be rebutted if the language of the standard as a whole or its purposes indicate an intention to limit unspecified test conditions to a particular condition or conditions.

In the case of the strength requirements in Standard No. 210, nothing in the language of the standard suggests that the strength requirements were only to be measured with the safety belt or other vehicle features at certain adjustment positions. Indeed, the purpose of the standard is to reduce the likelihood that an anchorage will fail in a crash. To serve this purpose, the anchorage must be capable of meeting the strength requirements with the safety belt and other vehicle features at any adjustment, since those features could be at any adjustment position during a crash.

The quoted statement, which was made in response to assertions by auto manufacturers that the test procedure was not sufficiently "objective" because certain test conditions were not sufficiently specified in the standard, demonstrates the fallacy of the contention in your memorandum (at pages 6-7) that the positioning of the body block in the July 10 test "introduc[es] a variable in the compliance test procedure that is not authorized by the NHTSA standard . . ." It also completely undermines Chrysler's assertion (at page 7) that the agency is "retroactively interpret[ing]" the standard. The industry was certainly "fairly informed" that "the standard must be met at all positions of unspecified test conditions."

NHTSA also disputes Chrysler's assertion (at page 4) that "the most natural and representative location for the body block" is against the seat back. To the contrary, that location is not consistent with any possible occupant use. Conversely, the location of the body block in the July 10 test conducted for NHTSA reflects the approximate belt geometry that would exist if a 5th percentile female occupied the seat. n2

n2 Standard No. 210 requires seat belt anchorages to be installed at each designated seating position, which is defined in 49 CFR 571.3(b) in part as a "location capable of accommodating a person at least as large as a 5th percentile female." This is yet another indication that all anchorages should be strong enough to withstand the required test loads when occupied by a person at least as large as a 5th percentile female.

As reflected in the preamble to the 1990 amendments to Standard No. 210 (55 FR 17970; April 30, 1990) and the discussion of the petitions for reconsideration of those amendments (56 FR 63676; December 5, 1991), the agency has endeavored to have the test procedure be as representative as possible of real world crash conditions. See, e.g., 55 FR at 17976-77 (simultaneous testing of anchorages); 55 FR at 17980, Col. 1 (limits on substitute materials to "ensure that the loading imposed during compliance testing is a realistic simulation of actual anchorage loading"); 55 FR at 17980, Col. 3 (effort to assure that reduced body block width will not be "unrepresentative of persons likely to occupy the seating position . . ."); 56 FR at 63677, Col. 1 (use of original attachment hardware "to ensure that the load application onto the anchorage is as realistic as possible"); and 56 FR 63677, Col. 3 (requiring that test setups using replacement webbing "duplicate the geometry" of the original webbing at the initiation of the test "to protect vehicle manufacturers from the agency identifying apparent noncompliances based upon test conditions with unrealistic loading"). n3 n3 NHTSA recognizes that in some respects the test procedure for Standard No. 210 does not simulate real-world conditions. See 55 FR at 17972-73 (explaining why the load onset and load holding times in the standard are "orders of magnitude greater than the corresponding time periods observed in crashes").

Your memorandum contends that an interpretation of Standard No. 210 under which a vehicle could be found noncompliant on the basis of a test with the body block several inches in front of the seat back would render the standard not "objective," and thus inconsistent with 49 U.S.C. @ 30111(a), citing Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 675-676 (6th Cir. 1972). However, that case merely prohibits NHTSA from establishing test procedures that are based on "subjective determinations:"

Objective . . . means that tests to determine compliance must be capable of producing identical results when test conditions are exactly duplicated, that they be decisively demonstrable by performing a rational test procedure, and that compliance is based upon the readings obtained from measuring instruments as opposed to the subjective opinions of human beings.

NHTSA's test procedure, as implemented by its contractor in the July 10 test, clearly satisfies each of these three criteria for objectivity. There can be no dispute that it produces "identical results," as demonstrated by the fact that the anchorages failed in tests performed by Chrysler using that procedure. The procedure is also "rational," in that it reflects a belt geometry that is found in the real world (as opposed to the belt geometry in the body block location favored by Chrysler). Finally, the anchorage failed in a test conducted in accordance with measurable readings, rather than any "subjective opinions of human beings."

Your memorandum states (at page 4) that Chrysler's review of prior NHTSA compliance tests suggests that "the agency has also customarily located the pelvic body block against the seat back during FMVSS 210 compliance tests." Our review of the tests conducted by the agency indicates that this statement is not correct. As I advised you approximately ten days ago, the distance of the body block from the seat is not a data point that is memorialized in the test reports. Therefore, OVSC personnel reviewed the test photos and/or films of all Standard No. 210 tests conducted by NHTSA contractors of MY 1990 and later vehicles in an attempt to ascertain the body block position in those tests. Of the 21 tests in which the body block position could be definitely ascertained, in all but one (a test of the front seat anchorage in a MY 1992 Geo Storm), the block was not flush against the seat back.

In accordance with its usual procedures, OVSC provided Chrysler with contemporaneous reports of the Standard No. 210 compliance tests that the agency performed on its vehicles. Photos of the two Standard Nos. 207/210 tests conducted on Chrysler vehicles during the past five years (on the 1994 Dodge Caravan and the 1994 Dodge Ram Van) reveal that the test body block was placed at some distance from the seat back. Thus, Chrysler cannot legitimately claim that it was surprised by the body block location used by the contractor in the July 10 test.

In sum, although Chrysler has submitted a test that indicates that the anchorages in the 1995 Cirrus did not fail when the body block was placed against the seat back, such a result is not sufficient to demonstrate compliance with Standard No. 210 when the anchorage fails in tests at other body block positions, and particularly where those positions are more reflective of real world belt geometry.

Under the circumstances, if Chrysler does not promptly notify the agency that it has decided that a noncompliance exists and conduct a notification and remedy campaign in accordance with 49 U.S.C. Chapter 301, the Associate Administrator for Safety Assurance would be justified in issuing an initial decision pursuant to 49 U.S.C. @ 30118(a) that such a noncompliance exists. Please advise me or Michael Brownlee of your intentions immediately.

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: nht87-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Darryl M. Burman

TITLE: FMVSS INTERPRETATION

TEXT:

Darryl M. Burman, Esq. Messrs. Dotson, Babcock & Scofield 1200 InterFirst Plaza Houston, Texas 77002-5219

Re: Whether market and sale of headlamp covers are regulated by Federal law

Dear Mr. Burman:

This is in reply to your letter of January 9, 1987, asking for an interpretation of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Your client wishes to import, market, distribute and sell a "cle ar, plastic headlamp cover...for all makes of cars manufactured in or imported to the United States." The stated safety purpose of the headlamp cover is "to protect the glass headlamps on automobiles from breaking."

Three methods of distribution are contemplated: direct sale by your client, sale through auto parts distribution centers, and sale as optional but uninstalled equipment at the time of the vehicle's original sale (the cover in its wrapping would be in the vehicle trunk). You state that the headlamp cover is not intended to be installed by your client, or its distributors and dealers, but will be accompanied by instructions so that the vehicle owner may install it. Warnings will be provided "about minimum Federal photometric requirements". You wish to know whether the headlamp cover is subject to Standard No. 108 or any other Federal regulation and, if so, the effect and impact of such regulation.

A plastic headlamp cover is "motor vehicle equipment", defined in pertinent part by Section 102(1) of the National Traffic and Motor Vehicle Safety Act (15 USC 1391(4)) as "any...accessory, or addition to the motor vehicle...." Its importer is a "manufac turer", defined in pertinent part by Section 102(5) of the Act as "any person importing...motor vehicle equipment for resale". As a manufacturer of motor vehicle equipment your client has the responsibility imposed by Sections 151 et seq of the Act to no tify and remedy in the event that either it or this agency determines that a safety related defect exists in the product, or that it fails to comply with all applicable Federal motor vehicle safety standards. You have already noted that headlamp covers a re not "a regulated safety device" under Standard No. 108. A "defect" under Section 102(11) includes "any defect in performance, construction, components, or materials". Under the best of circumstances a plastic cover when new will reduce light output of a headlamp beneath its designer's intent, whether or not the output falls below the floor established by Standard No. 108 as a minimum for headlamp performance. In service, a plastic headlamp cover may contain condensation under certain climatic conditi ons, or grow increasingly opaque through exposure to ultraviolet rays or other atmospheric components, either of which would further affect the design performance of the headlamp. A conclusion could be reached that such a cover contained a safety related defect and that its importer should notify all purchasers and remedy according to the Act.

Safety problems associated with headlamp covers led to their prohibition when the headlamp is in use, initially under SAE J580 for sealed beam headlamps and later by its incorporation into Standard No. 108, for both sealed beam and replaceable bulb headl amps. The specific prohibition of J580 is why passenger cars are not manufactured with original equipment headlamp covers. Under Section 108(a)(l)(A) of the Act, if a dealer sells a noncomplying motor vehicle, he is in violation of the Act, and may be su bject to civil penalties for it. These penalties, under Section 109, range up to $1000 for a single violation, with a cumulative total of $800,000 for a related series of violations. If a dealer at time of sale provides the means through which a new car meeting all Federal safety standards may be rendered noncompliant immediately after its delivery, we would regard that as tantamount to his having sold a noncomplying motor vehicle in violation of the Act.

Although there is no Federal prohibition against a vehicle owner installing and using headlamp covers, there may nonetheless be local laws covering the sale and use of this equipment. We offer no views of your client's potential exposure under common law , in such situations as use of a deteriorated cover, or when used with a substandard replacement headlamp, except to note that photometric "warnings" may serve no defensive purpose. Photometric values at the individual test points are judged under labora tory conditions. Service facilities do not contain equipment by which on-vehicle compliance of the headlamp can be judged, and the eye is a subjective and unreliable source to discriminate between complying and noncomplying levels of light output.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

January 9, 1987

National Highway Traffic Safety Administration Erika Z. Jones, Chief Counsel 400 7th Street, S.W. Washington. DC 20590

Re: Letter ruling to determine if market and sale of headlamp covers are regulated by federal law

Dear Ms. Jones:

REQUEST FOR RULING

Our client is in the process of forming a Texas corporation (the "Company") to engage in those activities described below, and, on its behalf, we are requesting an interpretation of Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Ass ociated Equipment ("Standard 108") and other related or applicable rules or regulations of the Department of Transportation. The reason for this request is the lack of specific guidance in determining (i) if the product our client will import, market and sell will be subject to such regulation, or any other federal regulation, and, (ii) if so, the effect and impact of such regulation. The product, which the Company intends to market, sell and distribute and for which the Company seeks approval by the Na tional Highway Traffic Safety Administration ("NHTSA"), is a clear, plastic headlamp cover (the "Headlamp Cover") for all makes of cars manufactured in or imported to the United States.

STATEMENT OF FACTS

The Company proposes to engage in the importation and marketing of the Headlamp Cover, either through direct sales to ultimate consumers or through sales to automobile dealers, distributors and automotive parts distributors. The Headlamp Cover is designe d to protect the glass headlamps on automobiles from breaking. The Company, distributors, automotive dealers and others will not physically install the Headlamp Cover on automobiles. However, the Company does intend to provide warnings and instructions i n the packaging so that the owner of the vehicle may purchase the proper Headlamp Cover and safely install it.

The Company, proposes to distribute the Headlamp Cover in one or more of the following manners:

1. Over-the-counter. The Company wishes to market and distribute its Headlamp Cover to auto parts distributor centers for sale to the consumer. These distribution centers will be instructed not to participate in the installation of the Headlamp Cover.

2. Option offered by Dealer. The Company will sell and distribute the Headlamp Cover to automotive distributors and dealers who will offer them as accessories to purchasers of new automobiles. The automotive distributors or dealers will place the Headlam p Cover, in its original packaging, in the trunk of the automobile and will not install it for the consumer. Automotive distributors of imported automobiles will place the Headlamp Cover in trunks of automobiles at the port of arrival and list the Headla mp Cover on the price sticker as well as the invoice to the dealer.

3. Direct to consumer. The Company also desires to sell its Headlamp Cover directly to consumers, again, with no installation services offered.

CHRYSLER RULING

The Company is aware of a fairly recent denial of petition for rulemaking by the NHTSA regarding an attempt by Chrysler Corporation ("Chrysler") for an amendment to Standard 108 to allow Chrysler to offer removable transparent Headlamp Covers as original equipment on motor vehicles manufactured by Chrysler. It is our client's understanding that such petition was denied primarily because Chrysler's Headlamp Covers caused a reduction in light output between 7.2% and 15.5% and it was conceivable that certa in replacement headlamps purchased by consumers would produce an unacceptable light output when used in conjunction with the Chrysler Headlamp Cover.

The Company believes its proposed activities should be differentiated from those of Chrysler and should not be subject to federal regulation. The differences between the Company's proposal and Chrysler's proposal are: (i) the Company intends to market an d sell, but not manufacture and install, the Headlamp Cover, (ii) the Headlamp Cover is not a regulated safety device as defined in Standard No. 108, (iii) the Headlamp Cover will not be original equipment installed on an automobile at the time of purcha se and will not be installed by the Company. the distributor or the dealer, as prohibited by SAE J580 Sealed Beam Headlamp Assembly and (iv) the Headlamp Cover will not be marketed as a dealer installed option.

Additionally, the Chrysler ruling dealt specifically with the sealed beam headlamp assembly while the Company proposes to initially sell Headlamp Covers for the bulb and reflector type headlamp assembly found on many makes of cars sold in the United Stat es today.

However, similar to Chrysler, the Headlamp Cover, when used with original headlamps furnished by the manufacturers of the automobiles, will satisfy minimum federal photometric requirements.

CONCLUSION

The Company believes its activities should not be compared to those of Chrysler. It is aware that there may exist circumstances or possibilities where the Headlamp Cover may be misused, but intends to make information available to all parties who sell th e Headlamp Cover directly to consumers regarding photometric warnings. The product will also be packaged so that warnings are found on the exterior of the package to warn consumers about minimum federal photometric requirements. The interior of the packa ge will contain complete and accurate instructions for consumer installation of the Headlamp Cover.

The Company questions whether the Headlamp Cover or the contemplated activities of the Company, the distributors and dealers who will sell the Headlamp Cover, fall within federal regulated guidelines. Therefore,the Company hereby requests a ruling differ entiating its sale of the Headlamp Cover from Chrysler and permitting the Company. and the distributors and dealers to whom it sells the Headlamp Cover, to market and sell this product in accordance with the procedures discussed above.

We appreciate your attention to this matter and would be grateful for your prompt response.

If we can provide you with additional information, please do not hesitate to contact us.

Very truly yours,

Darryl M. Burman

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

ID: nht76-1.40

DATE: 02/18/76

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Miller Spreader Company

COPYEE: MR. WELTZER -- REGION OFC. V

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of January 1, 1976, to Regional Office V of the National Highway Traffic Safety Administration (NHTSA), concerning whether your company's spreader product must comply with the requirements of Federal motor vehicle safety standards and regulations, paricularly Standard No. 119, New Pneumatic Tires.

The NHTSA issues safety standards and regulations for "motor vehicles." Section 102(3) of the National Traffic and Motor Vehicle Safety Act defines a motor vehicle as a vehicle "manufactured primarily for use on the public streets, roads, and highways." Thus, a motor vehicle is a vehicle which the manufacturer expects will use public highways as part of its intended function. The primary function of some vehicles is of a mobile, workperforming nature, and, as such, their manufacturer contemplates a primary use of the highway. Mobile cranes, rigs, and towed equipment such as chippers and pull-type street sweepers that travel at a normal highway speed are examples in this area. These motor vehicles qualify as trucks or trailers. As such they are subject to the Federal motor vehicle safety standards and regulations. On the basis of the information you have sent us your company's towed paver appears to be in this category of vehicles, and would therefore be considered a "motor vehicle."

There are some vehicles which are excepted from the motor vehicle classification despite their use on the highway. Highway maintenance and contruction equipment, lane stripers, self-propelled asphalt pavers, and other vehicles whose maximum speed does not exceed 20 mph and whose abnormal configuration distinguishes them from the traffic flow are not considered motor vehicles. Your company's paver would not appear to qualify in this category of vehicles since, as a towed paver, it would travel at a speed greater than 20 mph, at least when moving between job sites.

Consequently, your product must comply with the requirements of the Federal standards and regulations. Standard No. 119 does not directly impose any duty on you, because it applies to tires rather than vehicles. However, the NHTSA has recently issued Federal Motor Vehicle Safety Standard No. 120, Tire Selection and Rims for Vehicles Other Than Passenger Cars (copy enclosed). This standard does require, effective September 1, 1976, that your vehicles be equipped with tires that conform to Standard No. 119 and are of sufficient load rating.

Please contact us if we can be of any further assistance.

YOURS TRULY,

Miller Spreader Company

December 30, 1975

Bob Webtzer U. S. Department of Transportation

Enclosed please find the following items:

A. Literature describing two (2) models of Towed Pavers manufactured by the Miller Spreader Company:

1) Dial-A-Mat Paver

2) MS-708A Paver

B. Drawing 41001 showing the general arrangement of the rubber tired undercarriage used on both paver models above.

C. One photograph showing rubber tired undercarriage mounted under a Paver (See photograph marked "C")

D. One photograph showing towed paver carried on the rear of the dump body of a drump truck (see photograph marked "d").

E. One photograph showing paver elevated off the ground and being pulled by a tow bar assembly (see photograph marked "E")

F. Copy of Internal Revenue Service ruling exempting the Miller Paver when used in conjunction with a Miller Tow Bar from Excise Tax Regulations.

The Miller Towed Paver is a piece of construction machinery used specifically to spread asphalt or base materials on a prepared surface. This machine is used by both governmental bodies and commercial contractors to build and maintain driveways, parking areas, roads, etc.

A rubber tired undercarriage provides running gear for this paver. We have used a 530/450 6" wheel and pneumatic tire assembly in either 4 or 6 ply design. Our present models of this towed paver use eight (8) of these tire assemblies per paver (See drawing 41001).

To date we have no recorded incidents of wheel or tire failure other than an occassional flat, on these towed pavers.

We are interested in how the use of our present wheel and tire assembly on our Towed Paver meet current Department of Transportation specifications for this type of construction machinery. Specifically, we are interested in information pertaining to the particular application of our Towed Paver with a tow bar for highway use.

For purposes of our discussions we can treat both the Miller Dial-A-Mat Towed Paver and the Miller MS-708A Towed Paver as similar units in that changes in accessory components change the model designation and not the basic function of the machine. Hereafter we will refer to either machine as "Towed Paver".

The operation of the Towed Paver involves attaching the paver to the dump truck rear wheel assembly by means of an in-a-wheel hitch (see cover of Miller Dial-A-Mat literature). The dump body of the truck is then elevated, dumping asphalt materials into the hopper of the paver. The dump truck then moves forward pulling the paver which deposits a thickness of asphalt.

Transportation of the Towed Paver to and from the jobsite is done in either of two (2) ways. The most common method of transportation is to suspend the paver on the rear of a dump body (see photograph marked "d").

The second method of transportation of the paver to and from the jobsite is to use a tow bar (see photograph marked "e"). The towed paver is lifted off the ground by use of two (2) hydraulic cylinders and locked into the elevated position. The tow bar is attached to the rear of the paver. The tow bar is then attached to rear of the towing vehicle. Safety chains, lights, etc. are provided. The Paver is pulled from jobsite to jobsite much in the same manner as portable concrete pumps, concrete mixers, etc.

The distance the paver would be towed would not normally exceed 10-15 miles. I don't know whether the enclosed information for a excise tax exemption will be of any help but I have enclosed it for any useful purpose it might serve. I trust the enclosed information is complete. Please let me know if you need further information. Thank you for your assistance.

W. Thomas James, III

Internal Revenue Service

May 13 1974

Miller Spreader Company

Attn: Mr. W. Thomas James, II Vice President

This is in reply to your letter of April 3, 1974, requesting a ruling whether the proposed manufacture and sale of a towing device described below will be subject to the manufacturer's excise tax imposed by section 4061(b)(1) of the Internal Revenue Code of 1954.

The towing device (Tow Bar) is specially designed to be attached directly to an asphault spreader (Miller Paver) and will be used to connect the Miller Paver to a towing vehicle (truck) for the purposes of job to job moves. The Tow Bar will be limited to use only with a Miller Paver and will not be adaptable for use with other machinery.

Section 4061(b)(1) of the Code imposes a tax on parts or accessories (other than tires and inner tubes) for any of the articles enumerated in subsection (a)(1) sold by the manufacturer, producer, or importer.

Section 48.4061(b)(2) of the Excise Tax Regulations defines the term "parts or accessories" as including (1) any article the primary use of which is to improve, repair, replace, or serve as a component part of an automobile truck or bus chassis or body, or other automobile chassis or body or taxable tractor, (2) any article designed to be attached to or used in connection with such chassis, body or tractor to add to its utility or ornamentation, and (3) any article the primary use of which is in connection with such chassis, body, or tractor, whether or not essential to its operation or use.

We have previously ruled in Revenue Ruling 72-479, published in the Internal Revenue Cumulative Bulletin 1972-2 at page 544, that a self-feeding spreading device designed to be attached to a standard dump truck body is not a "part or accessory" subject to excise tax. The Miller Paver is a self-feeding spreading device as described in Revenue Ruling 72-479 and is therefore not a "part or accessory" subject to excise tax.

The Tow Bar described is designed to be used primarily as a component part of, to add to the utility of, and in connection with the non-taxable Miller Paver rather than primarily with a taxable towing vehicle. Therefore the proposed manufacture and sale of the Tow Bar would not be subject to the tax imposed by section 4061(b)(1) of the Code.

We are enclosing a copy of Revenue Ruling 72-479 for your information.

Richard L. Crain Acting Chief, Excise Tax Branch

For the best paving job, greater profits . . . chec miller MS - 708A with Hydraulic Beam Electric/Hydraulic Controls Rubber Tires Heat

FOR MATERIAL SAVINGS

You'll need Miller's exclusive Hydraulic Beam. This feature alone will save time and material as well as reduce operator fatigue. Two levers on the operator's console let him make thickness corrections on either or both sides of the paver.

Corrections are made quickly and accurately . . . WITH HYDRAULIC BEAM a correction can be made in less than 4 feet of paver travel . . . with other pavers the same correction takes from 12 to 15 feet of travel.

FOR A SMOOTHER MAT

Check Miller's wide stance rubber tire undercarriage. The tires are staggered so they won't follow truck ruts and will provide a smoother ride over rough base.

(Graphics omitted)

(Graphics omitted)

FOR QUALITY MAT FINISH

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(Graphics omitted)

ID: nht76-2.29

DATE: 01/07/76

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Motorcycle Industry Council, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of December 30, 1975, asking whether Federal Motor Vehicle Safety Standard No. 108, which permits the manufacture of motor-driven cycles whose top speed is 30 mph, without turn signal lamps, preempts a State requirement that all motor vehicles be equipped with such lamps.

The answer to your question is yes. Even though a State as in your hypothetical may not have defined "motor vehicle," or its definition of a vehicle category differs from a definition in 49 CFR 571.3(b) (e.g. where a State defines a motor-driven cycle as a "bicycle"), it is preempted by Section 103(d) from establishing or maintaining in effect a safety standard that differs from a Federal standard covering the same aspect of performance. Accordingly, since @ 4.1.1.26 of 49 CFR 571.108, Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment excuses low speed motor-driven cycles from the requirement that they be equipped with turn signal lamps, a State cannot require them on identical vehicles.

I hope this answers your question.

YOURS TRULY,

MOTORCYCLE INDUSTRY COUNCIL,

December 30, 1975

Chief Counsel National Highway Traffic Safety Administration

The Motorcycle Industry Council, Inc., representing manufacturers and distributors of motorcycles and motorcycle parts and accessories requests an advisory opinion from counsel regarding certain issues that have surfaced at the state level subsequent to NATSA's motordriven cycle/moped ruling of October 1974.

Issue: Equipment requirements

When state law requires that "every licensed motor vehicle . . . shall be equipped with electric turn signal lamps . . ." without further defining "motor vehicle". There appears to be a conflict between the state statute and the federal regulation which exempts certain motor driven cycles from this requirement.

Question: Does Federal Regulation (49 CFR 571.108) exempting motordriven cycles of 5 hp or less whose speed attainable in one mile is 30 mph or less from the requirement to be equipped with turn signals, preempt in the case where equipment requirements (turn signals) are specified by the state for all licensed motor vehicles?

Melvin R. Stahl Vice President Government Relations

MOTOR VEHICLE DEPARTMENT

May 17, 1972

MEMORANDUM: KANSAS COUNTY TREASURERS, SHERIFFS' DEPARTMENTS AND KANSAS HIGHWAY PATROL

Re: ELECTRIC TURN SIGNAL LAMPS. K.S.A. 1971 Supp. 8-590a(b)

"After December 31, 1971, every licensed motor vehicle; also every licensed trailer, semitrailer and pole trailer shall be equipped with electric turn signal lamps meeting the requirements of K.S.A. 1970 Supp. 8-590(b): (Emphasis added)

K.S.A. 8-126(b), the registration section of the Motor Vehicle Code, defines a motor vehicle as "Every vehicle, as herein defined, which is self-propelled."

K.S.A. 8-501, the regulatory or enforcement section of the Motor Vehicle Code, defines a motor vehicle as "Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolly wires, but not operated upon rails."

K.S.A. 8-126(d), the registration section of the Motor Vehicle Code, defines a motorcycle as "Every motor vehicle designed to travel on not more than three (3) wheels in contact with the ground, except any such vehicle as may be included within the term "tractor" as herein defined.

K.S.A. 9-501, the regulatory or enforcement section of the Motor Vehicle Code, defines a motorcycle as "Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three (3) wheels in contact with the ground, but excluding a tractor."

Based upon the foregoing definitions from the registration section of the Motor Vehicle Code and the regulatory or enforcement section of the Motor Vehicle Code, it does appear that they are generally in harmony in the definition of a motorcycle as a motor vehicle.

The question then arises -- are the County Treasures of Kansas obligated to sell registration (license plates or tags) to those persons making application therefore, assuming the application is otherwise in proper form, if such person in fact does not have his motor vehicle (motorcycle) equipped with electric turn signal lamps?

It is our opinion that they are so obligated.

The Legislature of Kansas did not set forth any provision for refusing the sale of registration or license plates in the registration section of the Motor Vehicle Code for failing to have the motor vehicle (motorcycle) equipped with electric turn signal lamps. Such equipment is not a condition precedent to the sale of registration.

The next question for consideration -- Are the law enforcement officers of Kansas obligated to enforce the provision of K.S.A. 8-590a(b)?

It is our opinion that they are so obligated.

The 1971 Sessin of the Kansas Legislature clearly set forth their mandate in K.S.A. 8-590a(b) that "After December 31, 1971, every licensed motor vehicle . . . shall be equipped with electric turn signal lamps meeting the requirements of K.S.A. 1970 Supp. 8-590a(b).

K.S.A. 8-590(b) clearly sets forth the requirements for electric turn signals and K.S.A. 8-590(b) sets forth that the "Preceding section [is] supplemental to [the] uniform act. Thus, there can be no mistake in determining legislative intent.

The question then arises -- May a State Legislature pass a law which interferes with or is contrary to the laws of Congress?

We are of the opinion that they cannot.

The Supremacy Clause of the United States Constitution was challenged as early as 1824 in Gibbons v. Ogden, 9 Wheat 1. At page 210 and 211, Chief Justice Marshall said that:

". . . in exercising the power of regulating their own purely internal affairs, whether "of trading or police, the states may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an act of congress passed in pursuance of the constitution, the court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that state, have, in their application to this case, come into collision with an act of congress, and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial, whether those laws were passed in virtue of a concurrent power 'to regulate commerce with foreign nations and among the several states,' or, in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of congress; and the decision sustaining the privileges they confer, against a right given by a law of the Union, must be erroneous. This opinion has been frequently expressed in this court, and is founded, as well on the nature of the government, however, it has been contended, that if a law passed by a state, in the exercise of its acknowledged sovereignty comes into conflict with a law passed by congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it.

The nullity of any act, *inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, interfere with, or are contrary to, the laws of congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it." This decision in the Gibbons Case supra has been followed in many other cases before the United States Supreme Court among those cases are Hines v. Davidowitz, 312 U.S. 52, Florida Lime and Avocado Growers Inc. v. Paul, 373 U.S. 132, and Perez v. Campbell, 402 U.S. 637.

Finally, congress in its wisdom has delegated to the Secretary of Transportation the duty and obligation of establishing certain Federal Motor Vehicle Safety Standards of which the foregoing statute relating to electric turn devices is one.

However, Congress had indicated to the states that such standard should be effective on December 31, 1972 (or January 1, 1973). Following this congressional mandate the Kansas Legislature enacted into law K.S.A. 8-590a(b) to be effective after December 31, 1971.

The final question than -- Does K.S.A. 8-590a(b) passed by the 1971 Session of the Kansas Legislature interfere with, or is it contrary to the laws of Congress?

We are of the opinion it is not.

December 31, 1972 was the final date -- not the commencement date -- that states would enact a law relating to turn signal devices on motorcycles.

Further, K.S.A. 8-590a(b) does not interfere with the marketing of the manufacturers products. The manufacturers remain free to market their products -- (there is no such restriction in K.S.A. 8-590a(b)) -- the purchaser may register his vehicle -- (there is no such restriction on registration) -- and thereupon, the burden, if any, is upon the owner to have his vehicle equipped with the proper electric turn signal devices.

Paragraph 571.20 Federal Motor Vehicle Safety Standards issued on May 13, 1971, provided in part as follows:

"It is the position of this agency, therefore, that under the Act and the regulatory scheme that has been established by its authority a State may not regulate motor vehicle or motor vehicle equipment, with respect to aspects of performance covered by Federal standards, by requiring prior State approval before sale or otherwise restricting the manufacture, sale or movement with the State of products that conform to the standards. This interpretation does not preclude State enforcement of standards by other reasonable procedures that do not impose undue burdens on the manufacturers, including submission of products for approval within reasonable time limits, as long as manufacturers are free to market their products while the procedures are being followed, as they are under the Federal scheme. (36 F.R. 10744--June 2, 1971)" (emphasis added)

In conclusion, it is our opinion that the manufacturer and dealer may sell motorcycles until December 31, 1972 without having electric turn signal devices; that the purchaser may register such vehicle so purchased; but during the course of operation of a motorcycle on the streets and highways in Kansas such operator of a motorcycle without the electric turn signal devices would be amenable to the regulatory and enforcement section of the motor vehicle code K.S.A. 8-501 et seq.

VERN MILLER, Attorney General State of Kansas

ELTON D. LOBBAN, Superintendent Motor Vehicle Department State of Kansas

ID: 86-2.42

TYPE: INTERPRETATION-NHTSA

DATE: 04/25/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Peter M. Kopanon

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your March 19, 1986 letter to our office concerning Federal preemption of state motor vehicle safety standards for school buses. Previously, you had requested us to clarify the language of section 103(d) of the National Traffic and Motor Vehicle Safety Act. We responded by letter dated March 24, 1986, which explained the phrase "procured for [the State's] own use." Your current letter focuses specifically on requirements for school bus mirrors in Federal Motor Vehicle Safety Standard No. 111, Rearview Mirrors, and asks whether Massachusetts could require an additional mirror on school buses owned by the state and its political subdivisions to enhance the view of the school bus operator.

The answer to your question is yes. As explained in our March 24 letter, under @ 103(d) of the Safety Act, a state may establish safety requirements for motor vehicles procured for its own use if such requirements impose the same or higher standard of performance than the Federal standard. The phrase "higher standard of performance" means that the state standard must not conflict with the Federal standard, but may contain additional or more stringent requirements. Massachusetts may thus require an additional mirror on its school buses that provides greater views of areas in front of and along sides of the bus. This requirement, however, must not conflict with Federal requirements and prevent the school buses from complying with Federal safety standards.

We explained in our March 24 letter that states may not prescribe safety standards for privately-owned school buses transporting children to private and parochial schools that are not identical to the Federal safety standards covering the same aspects of performance. Your current letter asked further about Massachusetts' requirement that school committees (which we understand to be political subdivisions of the state) provide equal pupil transportation to public, private and parochial schools. You asked whether buses procured to fulfill this mandate are "procured for the state's own use," even though the buses would be used to transport students to private and parochial schools.

In our opinion, the answer is yes. NHTSA has interpreted the phrase "procured for its own use" to apply to any vehicle intended for transporting the public which is procured by a state or political subdivision thereof. Buses procured by the state to transport students to private and parochial schools are thus "procured for the state's own use," and may be required by Massachusetts to have additional mirrors to promote the safety of the school children they carry. We note, of course, that we suggest no position as to the constitutionality of state law.

I hope we have responded to your concerns. Please contact my office if you have further questions.

SINCERELY,

The Commonwealth of Massachusetts Registry of Motor Vehicles

March 19, 1986

Stephen P. Wood Assistant Chief Counsel for Rulemaking National Highway Traffic Safety Administration

Dear Mr. Wood:

Pursuant to my letter of November 22, 1986, (copy enclosed), and subsequent telephone conversations with Ms. Hom of your office, I find it necessary to request additional clarification concerning a possible unique situation regarding the transportation of school pupils enrolled in private or parochial schools.

The State of Massachusetts provides equal financial assistance for the transportation of public, private or parochial school pupils to and from school, in accordance with Massachusetts General Laws, Chapter 76 Section 1 (summary attached).

Accordingly, I am in the process of drafting legislation that will require a system of mirrors that will provide the seated operator of a school bus with a view of the roadway immediately to each side of the bus, and of the area immediately in front of the front bumper.

In order to provide this reflected view, Massachusetts would require a minimum of one additional mirror and would, therefore, place Massachusetts in noncompliance with No. 111 of the Federal Motor Vehicle Safety Standards.

In conclusion, it is my understanding that I may require such mirrors on school buses owned by the Commonwealth and its political subdivisions; however, it appears there may be some doubt regarding school buses used solely for the transportation of private and parochial children.

Thank you again for your much needed and appreciated guidance. If you have any questions, I can be reached at (617)727-3785.

Peter M. Kopanon, Director Vehicle Inspection Services

ENCS.

STATUTORY REQUIREMENTS

The following is a partial summary of current statutory requirements in the Massachusetts General Laws as they pertain to pupil transportation services in the Commonwealth. The statutes listed include school committee responsibilities, educational program requirements and reimbursement programs. This is only a summary: statutes should be consulted in their entirety.

CHAPTER 76, Section 1. REGULATION OF SCHOOL ATTENDANCE - (PUPIL TRANSPORTATION APPROPRIATION - HAZARDOUS CONDITIONS - NON PUBLIC SCHOOL TRANSPORTATION)

. . . In order to protect children from the hazards of traffic and promote their safety, cities and towns may appropriate money for conveying pupils to and from any schools approved under this section.

Except as herein provided, pupils who attend approved private schools of elementary and high school grades shall be entitled to the same rights and privileges as to transportation to and from school as are provided by law for pupils of public schools and shall not be denied such transportation because their attendance is in a school which is conducted under religious auspices or includes religious instruction in its curriculum. Each school committee shall provide transportation for any pupil attending such an approved private school within the boundaries of the school district, provided, however, that the distance between said pupil's residence and the private school said pupil attends exceeds two miles or such other minimum distance as may be established by the school committee for transportation of public school students. Any school committee which is required by law to transport any pupil attending an approved private school beyond the boundaries of the school district shall not be required to do so further than the distance from the residence of such pupil to the public school he is entitled to attend.

CHAPTER 71, Section 68. DUTIES OF TOWNS TO MAINTAIN SCHOOLS: TRANSPORTATION OF CHILDREN - (MILEAGE - SCHOOL BUS STOPS)

Every town shall provide and maintain a sufficient number of schoolhouses, properly furnished and conveniently situated for the accommodation of all children therein entitled to attend the public schools. If the distance between a child's residence and the school he is entitled to attend exceeds two miles and the nearest school bus stop is more than one mile from such residence and the school committee declines to furnish transportation, the department, upon appeal of the parent or guardian of the child, may require the town to furnish the same for a part or for all of the distance between such residence and the school . . .

CHAPTER 71 - Section 37H. PUBLICATION OF SCHOOL COMMITTEE RULES AND REGULATIONS PERTAINING TO THE CONDUCT OF TEACHERS AND STUDENTS - (PUBLICATION AND FILING REQUIREMENTS)

The school committee of every city, town or district shall publish its rules or regulations pertaining to the conduct of teachers or students which have been adopted. Copies of the rules or regulations shall be provided to any person upon request and without cost by the principal or headmaster of every school within each city, town or district. Such rules or regulations shall not become effective until filed with the commissioner of education, accompanied by a certification by the committee that copies of the rules or regulations are available as previously set forth.

CHAPTER 40, Section 4. TRANSPORTATION CONTRACTS - (PUPIL TRANSPORTATION CONTRACTS)

A town may make contracts for the exercise of its corporate powers including the following purposes . . .

For the furnishing of transportation of school children. Contracts for such transportation may be made by the school committee for periods not exceeding five years; provided, that no such contract, whether written or oral, shall be made for the use of such transportation of a school bus, as defined in section one of chapter ninety, other than a motor vehicle for the operation of which security is required to be furnished under section six of chapter one hundred and fifty-nine A, unless there shall first have been filed with the registrar of motor vehicles and by copy with the city or town clerk the certificate of an insurance company or surety company authorized to issue or to execute as surety within the commonwealth motor vehicle liability policies or bonds, both as defined in section thirty-four A of chapter ninety, except as to amount, that there is in force such a policy or bond issued or executed as aforesaid, covering such school bus, which provides indemnity, protection or security to the amount or limit of at least fifteen thousand dollars on account of injury to or death of any one person, and subject to such limits as respects injury to or death of one person, of at least two hundred thousand dollars on account of any one accident resulting in injury or death of more than one person; and provided, further, that the termination of such a policy or bond during the term of any such contract shall be breach thereof and forthwith terminate it. All provisions of law applicable to motor vehicle liability policies and bonds as defined as aforesaid shall apply to policies and bonds containing such additional amount of indemnity, protection or security . . .

CHAPTER 71, Section 7A. TRANSPORTATION OF PUPILS (REIMBURSEMENT)

The state treasurer shall annually, on or before November twentieth, pay to the several towns subject to appropriation, the sums required as reimbursement for expenses approved by the commissioner of education, incurred by any town for the transportation of pupils once daily to and from any school within the town, or in another town, in excess of five dollars per annum per pupil in the net average membership of such town; provided, (a) that no transportation reimbursement shall be made on account of any pupil who resides less than one and one-half miles from the school which he attends, measured by a commonly traveled route; (b) that the amount of grant, per pupil, for transportation to private schools in towns which furnish such transportation, shall not exceed the amount of grant per pupil for transportation to public schools and (c) that no contract shall be awarded except upon the basis of prevailing wage rates . . . and of sealed bids, and the school committee shall, in the event that a contract is awarded to other than the lowest bidder, file with the department a written statement giving its reasons therefore, which statement shall be open to the public inspection . . .

ID: 86-4.33

TYPE: INTERPRETATION-NHTSA

DATE: 08/04/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Henry A. Gorry

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Henry A. Gorry Guardian Industries 43043 West Nine Mile Road Northville, Michigan 48167

Dear Mr. Gorry:

Thank you for your letter to Mr. Edward Jettner, which was referred to my office for reply. You asked a number of questions about the certification requirements of Standard No. 205, Glazing Materials. I regret the delay in answering your questions.

You are correct in your understanding that S6.2 of the standard requires a prime glazing material manufacturer to certify each piece of its glazing material which is designed as a component of a specific motor vehicle or camper by placing the marks required by S6.1 of the standard on the glazing and adding the symbol "DOT" and a manufacturer's code mark assigned by this agency. You are also correct that pursuant to S6.5, each manufacturer or distributor who cuts a section of glazing material for use in a motor vehicle or camper must place the marks required by S6.1 on the glazing and certify the material in accordance with section 114 of the National Traffic and Motor Vehicle Safety Act. Those persons do not have to add the symbol "DOT" and a manufacturer's code mark to the glazing.

You asked why the standard draws a distinction between glazing materials which are designed as a component of a specific vehicle and glazing materials which are cut from a section of another item of glazing material. As explained by the agency in an interpretation letter of June 10, 1975, to the California Highway Patrol, NHTSA's purpose in structuring the marking requirements in this way was to enable us to determine, for purposes of attributing responsibility for compliance, which glazing in a motor vehicle had been manufactured by the prime manufacturer specifically for use in that vehicle, and which glazing had been cut, shaped, or otherwise altered before installation. In an interpretation letter of July 13, 1976, to DuPont, the agency further explained that since issuance of the certification requirements in 1967, those requirements have become more widely understood and uniformly practiced throughout the glazing industry, which has aided the "traceability" of glazing materials for enforcement purposes. NHTSA also said that it would no longer prohibit the use of the "DOT" symbol and the prime glazing manufacturer's code number by the distributor or manufacturer who cuts the glazing, if the prime glazing manufacturer grants permission for such use of the code number to the distributor or manufacturer.

You asked if the term "manufacturer" used in S6.4 and S6.5 of the standard is meant to mean a "prime glazing manufacturer." Section 571.3 of our regulations provides that terms defined in section 102 of the National Traffic and Motor Vehicle Safety Act that are used in the Federal Motor Vehicle Safety Standards have the statutory definition assigned to them by the Act. Section 102(5) of the Vehicle Safety Act defines the term "manufacturer" as "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." Thus, the term "manufacturer" used in S6.4 and S6.5 includes both a prime glazing manufacturer and a person that assemblies or manufactures vehicles or items of motor vehicle equipment.

You also asked about the definition of the term "distributor." As discussed above, section 571.3 provides that terms defined in section 102 of the Vehicle Safety Act that are used in the Federal Motor Vehicle Safety Standards have the statutory definition assigned to them by the Act. Section 102(6) of the Vehicle Safety Act defines the term "distributor" as "any person primarily engaged in the sale and distribution of motor vehicles or motor vehicle equipment for resale." You said that you are confused about the need to distinguish between manufacturers and distributors. The purpose of the distinction was to make sure that commercial sellers who cut glazing for use in motor vehicles, but do not otherwise perform a manufacturing process on the glazing, have to comply with the marking and certification requirements. You are correct that a prime glazing manufacturer may also be a distributor; likewise there are distributors who are not prime glazing manufacturers.

You also asked why the term "camper" is distinguished from the term "motor vehicle" in S6 of Standard No. 205. As mentioned previously, Section 571.3 of our regulations provides that terms defined in the Vehicle Safety Act that are used in the Federal Motor Vehicle Safety Standards have the statutory definition assigned to them by the Vehicle Safety Act. Section 102(3) of the Vehicle Safety Act defines "motor vehicle" as, in part, "any vehicle driven or drawn by mechanical power...." As a camper has no independent mechanical power and is not drawn, it would not be covered by the definition of "motor vehicle". Thus, it has necessary to specifically define the term "camper" in S4 of Standard No. 205 to make clear that a camper, which is an item of motor vehicle equipment, is covered by Standard No. 205.

Finally, you asked why do S6.2, S6.4, and S6.5 of Standard No. 205 apply to motor vehicles and campers, while S6.3 refers only to motor vehicles and items of motor vehicle equipment. As discussed previously, a camper is considered an item of motor vehicle equipment and thus the requirements of S6.3 would also apply to glazing made by a prime glazing manufacturer for use in a camper. Since the term "item of motor vehicle equipment" is a more encompassing classification than camper, the requirements of S6.3 apply to other pieces of equipment, such as wind deflectors, made by prime glazing manufacturers.

If you have any further questions, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

March 6, 1986

National Highway Traffic Safety Administration U.S. Department of Transportation 400 Seventh Street, S. W. Washington, D.C. 20590

Attention: Mr. Edward Jettner Office of Vehicle Safety Standards

Subject: Federal Motor Vehicle Safety Standard No. 205

Reference: 'Certification and Marking'

Dear Ed:

Please forgive this imposition. Possibly, at your very own convenience, you might be so kind as to accommodate my office by directing this enquiry to the appropriate NHTSA appointment for consideration.

Herein, Guardian Industries Corp. respectfully solicits from NHTSA clarification of certain parts of the 'Certification and Marketing" requirements currently set-forth at the subject Federal Motor Vehicle Safety Standard - concerning the requirements for glazing materials used in motor vehicles and motor vehicle equipment.

From the reading of Section S6.2 of the subject safety standard, it is the understanding of my office each piece of glazing material, to which the safety standard applies, which is designed as a component of any specific motor vehicle or camper, is to be certified pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 through the inclusion, in addition to other marks, of a "DOT" symbol suffixed by a manufacturer's code mark: and that a manufacturer or distributor who cuts a section of glazing material, to which the safety standard applies, for use in a motor vehicle or camper, is required to mark and certify the material in accordance with Section 6 of ANS Z26 and Section 114 of the National Traffic and Motor Vehicle Safety Act of 1966 respectively - See Section S6.4 and S6.5 of the safety standard.

My office, on behalf of Guardian Industries Corp. its affiliate and subsidiary Companies, Submits the following question for NHTSA's Consideration:

a. Whilst section S6.2 of the safety Standard obligates a prime glazing material manufacturer certify each piece of glazing material designed as a Component of a specific vehicle in the prescribed manner, sections S6.4 and S6.5 of the safety standard requires marking and certification of those parts cut from a section of glazing material pursuant to Section 6 of ANS Z26 and section 114 of the National Traffic and Motor Vehicle Safety Act of 1966. Of consequence, does this mean parts cut from a Section of glazing material, for use in a motor vehicle or camper need not be marked with a "DOT" symbol and manufacturer's code mark.

Why the distinction between glazing material parts designed as a Component of a specific vehicle from those parts cut from a section of glazing material, when it may be argued parts cut from a section are as much intended for specific motor vehicles and motor vehicle equipment as are parts designed as a Component of any specific motor vehicle or motor vehicle equipment.

Additionally, it would be most greatly appreciated if NHTSA might see fit to advise my office in respect to the following:

a. It is presumed 'Manufacturer', as employed as Section S6.4 and Section S6.5 of the safety standard, is a term used to describe one whose activities correspond with those attributed to a prime glazing material manufacturer - See S6.l of the safety standard.

b. It appears the Safety standard does not furnish a definition describing the activities of a 'Distributor'. May it be presumed a distributor is a party engaged in the Commercial disposition of glazing materials, to which the safety Standard applies, as well as being one who also cuts a section of glazing material for use in motor vehicles and Campers.

I am a trifle confused as to the need to distinguish manufacturers and distributors in the safety standard. Is not the act of cutting a glazing material an inherent part of the fabrication process - an activity attributed, at Section S6.1, of the safety standard, to the prime glazing material manufacturer.

Further, may a prime glazing material manufacturer not only fabricate, laminate, temper and cut but also distribute in commerce glazing materials for motor vehicle and Camper use.

c. Why is camper, throughout most of Section 6, singled-out from motor vehicle when the definitions of a motor vehicle and motor vehicle equipment, at Section S4 of the safety standard, include the term camper.

d. Why do Sections S6.2/S6.4/S6.5 of the safety standard apply to motor vehicles and campers whilst Section S6.3 refers to motor vehicles or items of motor vehicle equipment.

Very truly,

GUARDIAN INDUSTRIES CORP.

Henry A. Gorry Certifications & Standards Manager

HAG:jep