ID: nht80-2.33

DATE: 05/07/80

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Bartmen, Braun & Halper

TITLE: FMVSS INTERPRETATION

TEXT:

MAY 7 1980

Mr. Samuel W. Halper Bartmen, Braun & Halper Attorneys at Law 1880 Century Park East, Suite 1015 Los Angeles, California 90067

Dear Mr. Halper:

This responds to your letter of March 13, 1980, asking several questions about Standard No. 213, Child Restraint Systems, on behalf of California Strolee, Inc.

I would first like to correct an apparent misunderstanding you have about remarks made by Mr. Hitchcock in a meeting with you and Mr. Richard Hyde of Strolee. Mr. Hitchcock's remarks were to the effect that the agency encouraged beneficial innovations in child restraints and would be receptive to amending the standard to remove any restrictions to beneficial innovations. Any amendments to the standard would be made in accordance with the requirements of the Administrative Procedures Act. The agency does not engage in "ad hoc" rulemaking procedures.

The following are the responses to the fourteen questions you asked.

1. You asked how the minimum surface area requirements set in section 5.2.2 for the sides and back of child restraints are to be measured. You were specifically concerned about measuring "curved surfaces, without some guidelines, the exact place where the side stops and the back begins cannot be ascertained." The area's measurements can be determined by positioning the appropriate test dummy in the restraint. The area within the dummy's outline projected directly rearward and the areas within the dummy's torso outline projected directly sideward must comply with the minimum surface area for the back and sides of the restraint.

2. You are correct that section S5.2.2.1(c) only requires a minimum radius of curvature and does not establish a minimum surface area for fixed or movable surfaces in front of the child. The agency encourages manufacturers to utilize designs with large surface areas at least equivalent to the shield designs incorporated in some current restraints.

3. You asked whether shoulder belt grommets are prohibited by section 5.2.3.2. In response to Strolee's petition for rulemaking on section 5.2.3.2, the agency has amended the section to permit the use of grommets that comply with the protrusion limitation requirements of section 5.2.4.

4. You raised a question about whether section 5.4.3.3 requires the use of a five-point belt system. The agency's intent was to allow the use of hybrid systems, which for example, might use upper torso restraints, a crotch strap and a shield instead of a lap belt. Thus, the agency provided in section 5.4.3.3(c) that a crotch strap must connect to the "lap belt or other device used to restrain the lower torso." The agency established the minimum radius of curvature requirements of section 5.2.2.1(c) to ensure that any surface used in place of a lap or other belt would not concentrate forces on a limited area of the child's body. The recent notice on the standard, appearing in the Federal Register of May 1, 1980, amends the standard to clarify section 5.4.3.3.

5. You objected to the buckle force requirements set in section 5.4.3.5 as being too high. The goal of that section is to prevent young children from opening the buckles while ensuring that adults can do so. As explained in the December 1979 final rule, section 5.4.3.4 is based on research done by the National Swedish Road and Traffic Institute. The research showed that young children could not open a buckle requiring a release force of 12 or more pounds, but could open buckles requiring a lower release force. That same research found that buckles requiring a release force greater than 20 pounds would be difficult for adult women to open. The agency is not aware of any research contradicting the Swedish study and no commenter to the docket submitted any data showing that the Swedish study is inaccurate.

6. You asked for an interpretation of the words "integral" and "position" as those words are used in section 6.1.2.3.1(c) and 6.1.2.3.2(c). Amended Standard 213 is intended to address, among other things, the problem of misuse of child restraints. The principal misuse involves the failure to attach buckles and latches. To ensure that children using child restraints are afforded protection notwithstanding such misuse, the standard specifies that the belts are to be attached to restraining shields during testing only if they are integral parts of the shields. Webster's New Collegiate Dictionary (1977) defines "integral" as meaning "formed as a unit with another part." Attachment of belts that are integral parts is permitted since they are intended to remain attached whether or not the restraint is in use and thus are not subject to the type of misuse described above.

The word "position" was also used in its common dictionary sense to mean put in place or arrange. Thus during the test, each movable surface will be put into place in accordance with the manufacturer's instruction. The positioning requirements only apply to the arrangement of the movable surface and does not permit the attachment of any belts that are not an integral part of the movable surface.

7. You stated section 6.1.2.4 is inconsistent with S6.1.2.3.1 and 6.1.2.3.2 because 6.1.2.4 supposedly allows attachment of the restraint system's belts, while sections 6.1.2.3.1 and 6.1.2.3.2 do not allow belts to be attached that are not an integral part of a fixed or movable surface.

Your interpretation is not correct. Section 6.1.2.4 sets specifications for tightening the restraint system's belts, prior to the sled test. However, both sections 6.1.2.3.1 and 6.1.2.3.2 provide that the belt adjustment requirements of section 6.1.2.4 are not to apply to belts that are not an integral part of the fixed or movable surface.

8. You asked how the agency defined "target point" as that term is used in section 5.1.3.2. Section 5.1.3.2 requires that "no portion of the target point on either side of the dummy's head" shall pass through two specified planes during the sled test. The agency used the term "target point" to refer to the center of the target on the side of the test dummy's head. The location of the target is specified in the engineering drawing incorporated in Part 572, Anthropomorphic Test Dummies, Subpart C.

9. You asked whether the standard establishes strength specifications for belts. Section 5.4 establishes performance requirements that the belt systems used in child restraint systems must meet. The section does not establish specific breaking strengths for the belts, other than the requirement in section 5.4.1(a) that after being subjected to "the abrasion requirements of Standard No. 209, Seat Belt Assemblies, the belts must have a breaking strength of not less than 75 percent of the strength of the unabraided webbing...." Of course, belts which are to be attached during testing must not break during the test if the effect of the breakage is to cause a violation of section 5.1.2 and 5.1.3.

10. You expressed concern about "the difficulty in running quality control tests where the buckle hardware is not subject to specifications, but only performance standards."

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391) only authorizes the agency to issue requirements that are as performance oriented as possible. The Act places responsibility on a manufacturer to devise its own specifications which will ensure that its product performs as required.

11. You asked our opinion whether the Waterbury buckle complies with standard No. 213. The agency does not issue opinions as to whether a particular design does or does not comply with the requirements of a standard. Under section 114 of the Vehicle Safety Act, manufacturers must certify that they comply with all applicable federal standards. 12. We have answered your questions concerning the use of soft foam armrests or trays in our earlier letter of April 17, 1980.

13. You asked whether "a buckle affixing the crotch strap to some other portion of the car seat must comply with the tension (sic) requirements of section 5.4.3.5. That section provides that "Any buckle in a child restraint system belt assembly designed to restrain a child using the system shall" meet specified buckle release requirements. Since a crotch strap is used in a child restraint system to restrain the child, a buckle used with the crotch strap must comply with the requirements of section 5.4.3.5.

14. You raised a question about the safety of buckles that "do not snap or latch, but rather require the turn of a knob to seal them together." Your concern in that the knob may not be fully turned and thus the buckle may not be fully latched. Any buckle, regardless of its specific design must comply with the release requirements of section 5.4.3.5. In the preamble to the December 1979 final rule, the agency encouraged manufacturers to use push button buckles, similar to those used in automobile belts, so that people unfamiliar with child restraints can readily unbuckle them in emergencies. Use of push button buckles would also solve the potential problems of incomplete latching that may be associated with knob-type buckles.

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

Sincerely,

Original Signed By

Frank Berndt Chief Counsel

March 13, 1980

Mr. Stephen Oesch Office of the Chief Counsel National Highway Traffic Safety Department of Transportation 100 7th Street, S. W., Room 5219 Washington, D. C. 20590

Re: Standard No. 213, Child Restraint Systems California Strolee, Inc.

Dear Mr. Oesch:

This letter will serve to confirm some of the items that were discussed between Mr. Hyde and me, on behalf of California Strolee, Inc. ("Strolee"), and Mr. Hitchcock, Mr. Radovitch, Dr. Burgett and you in our meeting of last week.

The following summation is presented to you in numerical order, but the relative importance of the item is not to be inferred from its location on the list.

Throughout the meeting we expressed our concern with the vagueness of certain areas of the standard. In addition, we expressed our concern regarding the manner in which this standard will be administered. This concern was further reinforced by our discussion during the first hour with Mr. Hitchcock. Mr. Hitchcock indicated that he would be receptive to any new ideas, and that if the Department felt the idea had merit the standard could be amended or interpreted to reflect these developments. Such an approach, we submit, is contrary to law and places the companies in the industry at a severe competitive disadvantage with each other. While Strolee is earnestly in favor of all developments that will truly enhance child safety, it feels that any developments must be adequately tested, to insure their safety, and must conform to Standard No. 213. If the standard is to be changed, then adequate notice should be given to all manufacturers, adequate time to comment should be given, and the standards duly adopted and published in the Federal Register citing realistic compliance time for the benefit of all manufacturers in the industry. To have "ad hoc" approval would, we feel, be both contrary to law and unfair to the manufacturers who have attempted in good faith to comply with the wording of the standard.

We expressed a concern to you regarding, for example, Section 5.4.3.3, which clearly states that if the child restraint system has belts, it shall have the three types of belts, to wit: shoulder belts, a lap belt and a crotch strap, the latter only if the seating system is recommended for children over twenty pounds. We objected to the Department giving its approval to a car seat having less than this number of belts since the standard expressly requires this. Our reasoning related to the fact that a manufacturer, be it Strolee or some other manufacturer, who relied upon the clear and specific requirements of this section of the standard in designing its car seat could be faced with a situation where a competitive car seat does not contain the required number of belts and was designed in a different manner. The company attempting to comply with the standard could, thus, be discriminated against in favor of another manufacturer who did not comply with this section of the standard. The obvious unfairness of this result, not to mention the questionable legality of such a procedure with amorphous standards, is not subject to dispute. This matter is considered from a different standpoint in the discussion that follows.

One final introductory point, both Mr. Hyde and I expressed our concern with the enforcement date of the new standard. In the realistic world of business, seats must be designed and tested, molds made and tooling prepared for production and then the seats must be retested. Our best estimate is that will take at least six months for the mold alone. Mr. Hyde has presented a letter to you setting forth a realistic time frame. We would earnestly request that the standards not become effective until March 1, 1981. In this regard, if the Department is going to allow amendments to the standard, or interpretations to the standard, to remove some of the ambiguities, we would request that a similar time consideration should be given after the interpretation or the amendment. For example, if Strolee has designed a car seat based upon three types of straps clearly mandated by Section 5.4.3.3 and the Departmental interpretation amends or interprets its standards to say that only two types of straps are required, then in the interest of fairness, we feel sufficient time should be given to allow us to retool, retest and take whatever steps are necessary to bring our seat into conformity with the amended standard. If such is not allowed, as I pointed out to you my client will be at a severe disadvantage or, in the alternative some other manufacturer will be at a severe disadvantage concerning their car seat vis-a-vis the Strolee seat.

In regard to the specific problems that we see with the regulations, while I am aware that the regulations have become final and the time for comment has expired, the following reflects some of the matters that we discussed and some of our concerns:

1) Section 5.2.2. This section fails to indicate how the dimensions of 85 square inches, 24 square inches and 48 square inches are to be measured. When dealing with curved surfaces, without some guide lines, the exact place where the side stops and the back begins cannot be ascertained. It was suggested that, as to the back areas, you were talking about the area directly behind the dummy.

2) Section 5.2.2.1(c). This section requires a radius of curvature of not less than three inches. We inquired as to a minimum area. Although it is certainly not Strolee's intent, or any other manufacturer of which we are aware, it is conceivable that a one-half inch metal bar with a radius of curvature of not less than three inches would pass this standard. Mr. Hitchcock stated that generally a one and one-half inch width, similar to the belt width requirements, would be acceptable, but such does not appear from the regulations.

3) Section 5.2.3.2. It was pointed out to you that this section would preclude the use of a shoulder harness which is inserted through the back of the shell, since the areas where the shoulder strap is inserted would not contain the required material. The Strolee system used grommets. You indicated to us that the grommets will be acceptable provided they comply with the protrusion limitation of Section 5.2.4.

4) Section 5.4.3.3. You indicated to us that there was no reason that a manufacturer cannot use the nonbelt substitute for the required three belt system. You indicated that you would interpret it with a ruling. In this connection, I have already expressed our objection to this type of procedure wherein a ruling would be squarely contrary to the express language of the standard.

5) Section 5.4.35. We raised some objection to the twelve pound--twenty pound standard. Mr. Hyde pointed out the experience that Strolee has had when the tension to release the belt is too tight (Strolee's buckle release force is in the eight pound range). Mr. Radovitch indicated that these standards were adopted from a Swedish study without tests being made by your department. Mr. Hyde pointed out that if the tension is too great, the mother will not use the belt buckle system, and this would not be in the best interest of the child. Strolee's experience has been some complaints by women to an eight pound buckle being difficult to use. If the twelve to twenty pound standard is mandatory, there would be substantial difficulty in removing a child from the car seat under emergency circumstances. We question if there has been any investigation as to the validity of the Swedish study.

6) Sections 6.1.2.3.1(c) and 6.1.2.3.2(c). The question of what is meant by the use of the words "integral part of the system". After substantial discussion, we were advised that the Department considered it as an integral part if it could not be removed without the use of tools. That is, if the belts could be removed by hand, they would not be considered an integral part of the fixed or moveable surface.

We also asked what was meant by the word "position" wherein the standard mandates that you position each moveable surface in accordance with the manufacturers instructions. Does this mean that belts can be attached? I feel this was not clarified or resolved.

7) Section 6.1.2.4. It was pointed out to you an inconsistency of this section with Sections 6.1.2.3.1 and 3.2. Section 6.1.2.4 providing that if the child seat is provided with shoulder and pelvic belts they shall be adjusted accordingly, yet Tests Configuration II precludes the use of such belts.

8) Section 5.1.3.2. We asked for a definition of the words "target point" and you indicated that this was the center point of the target area, not a target area of a fixed diameter.

9) Section 5.4. We asked for confirmation as to strength specification on the belts and hardware. You indicated that there were no specifications, just performance requirements and a minimum width of not less than one and one-half inches on the belts. This included any positioning belt.

10) Section 6.2. We pointed out to you the difficulty in running quality control tests where the buckle hardware is not subject to specifications, but only performance standards. It was impractical, Mr. Hyde stated, to run sled tests on each group of buckles received and while another test might be devised, the realiability of such other test could not be totally insured.

11) We asked your opinion as to whether the Waterbury buckle complies with your requirements. We did not resolve this.

12) We asked your opinion concerning a soft foam arm rest or tray in front of the car seat, something that would contribute play value but obviously having no safety function. We would appreciate your studied opinion on this. Strolee feels such an arm rest is most important to keep the child happy in the car seat.

13) In regard to the crotch strap, we requested an interpretation as to whether a buckle affixing the crotch strap to some other portion of the car seat must comply with the tension requirements of Section 5.4.3.5. We expressed our concern that a child might be able to reach the crotch strap and undo it if the tension requirements were not met.

14) In regard to the buckle system, we expressed our concern as to buckles that did not snap or latch, but rather required the turn of a knob to seal them together. What happens if the knob was not fully turned, i.e., if a bolt restraint was turned half way so that the buckle was not fully latched. You indicated to us that you had not considered that problem.

In addition to the foregoing specifics, we expressed our general concern with this standard and the difficulty of complying with it. We pointed out to you that Strolee is and always has been a conscientious manufacturer of quality products with safety first in mind and has a record for producing a reliable seat without safety complaints. For over twenty-five years, Strolee has studied the buying habits of parents, and more importantly, safety for infants. Thus, their strong belief that this new standard will reduce car seat usage and, most regretably, actually reduces the protection of the infant.

While I did not discuss it with you, I think you should bear in mind that any client, the largest manufacturer of juvenile car seats, has never been sued or had a claim made for even one child that was ever injured in any automobile accident. To the contrary, its files are replete with letters from parents praising Strolee for saving their child from serious injury or worse, in accidents of unbelievable force. In this day and age where individuals are all too willing to file claims and to sue for accidents, the record of Strolee in producing a safety device for children, I believe, is unparalleled. It is this record which makes the new standards so punitive to my client and to parents and their infants. The cost, both in dollars and cents, and in executive time, to change a product where no need has been shown to exist is particularly onerous. Indeed, when one reflects that the added costs necessitated by the changes will result in a higher cost to the consumer, and a subsequent diminution in demand, the new standard seems incongruous.

In conclusion, we request that all ambiguities, to the extent they can be ascertained at the present time, be resolved, that the effective date of the regulations be postponed to March 1, 1981, and if amendments are made to the standard, that the effective date be delayed a proportionately greater length of time. We also request that any amendments be made subject to comment and review by appropriately qualified individuals in the private sector and we request that no competitive advantage be granted to anyone in the industry by virtue of any interpretation of existing standard without due process of law.

Yours very truly,

SAMUEL W. HALPER

SWH:rc

ID: 001773ogm

Dr. Barry D. Faguy
Comite DAction Politique Motorcycliste
C.P. 49 007, Place Versailles
Montreal, Quebec, H1N 3T6
Canada

Dear Dr. Faguy:

This responds to your letter seeking information about the labeling requirements in Federal Motor Vehicle Safety Standard No. 218, Motorcycle Helmets (49 CFR 571.218). Your letter correctly notes that section S5.6.1 of Standard No. 218 requires that motorcycle helmets be permanently labeled with a "DOT" mark as the manufacturers certification that the helmet complies with Standard No. 218. You indicate that Quebec courts interpreting Quebec law have held that the "DOT" certification mark must be accompanied by a reference to "FMVSS 218" in order for a helmet worn by a rider to comply with Quebecs helmet law. Your letter further states that an example of such a decision is enclosed for our information. However, the decision you discuss was not in the letter we received. You then ask us to state without "any possible ambiguity" whether S5.6 (e) is intended to require that the legend "FMVSS 218" appear on the exterior of a helmet as evidence that the helmet has been certified as complying with Standard No. 218. You also ask if the legend "FMVSS218" must appear on the DOT label or any other label on the inside or outside of a helmet. Finally, you ask how a law enforcement officer can, through a visual inspection, determine if a motorcycle helmet complies with Standard No. 218.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority under Chapter 301 of Title 49, U.S. Code, to establish Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment, including motorcycle helmets. This statute requires each person manufacturing, selling, or offering for sale any new vehicle, or item of equipment, covered by an FMVSS, to ensure that the new vehicle or equipment item is certified as meeting all applicable FMVSSs. These provisions apply to products manufactured, sold, or offered for sale in the United States. We express no view as to what may be required under the laws of Canada or any of its provinces.

The "DOT" certification mark and other required labels provide important information regarding the helmet, including the fact that the manufacturer has certified that the helmet meets Standard No. 218. Section S5.6.1 of the Standard requires that each helmet be permanently and legibly labeled with certain warnings, identifying information, size, and the DOT certification mark. Our agency requires permanent marking of these items because we believe this information is needed for the life of the helmet. However, S5.6.1 does not require that any label contain the legend "FMVSS218" or "FMVSS 218." Furthermore, Standard No. 218 does not require that a compliant helmet be marked or labeled, either on the outside or the inside, with the legend "FMVSS218" or "FMVSS-218."

You also ask how a law enforcement officer can determine if a motorcycle helmet complies with Standard No. 218 by visual inspection. Whether a law enforcement official's inspection of a helmet is sufficient to justify either the detention of an individual or the issuance of a summons is a matter of state, or in your case, provincial law. As such, this office cannot comment on whether such an action by law enforcement official is in compliance with the laws of Quebec. Similarly, this office cannot render an opinion regarding either the laws of the Province of Quebec or the application of those laws by any court. Accordingly, we are unable to provide any comments on the propriety of the court decisions discussed in your letter or the requirements of Quebecs laws.

I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Otto Matheke of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

cc:     Dr. Barry D. Faguy


189 Hymus Blvd. Suite #600
Point Claire, Quebec
Canada, H9R-1E9

ref:218
d.5/27/03

ID: 8181

The Honorable Paul David Wellstone
United States Senate
2550 University Avenue, West
Court International Building
St. Paul, MN 55114-1025

Dear Senator Wellstone:

Thank you for your letter on behalf of your constituents, Ms. Tutti Sherlock and Ms. Mary Bock, regarding the application of the National Highway Traffic Safety Administration's (NHTSA's) school bus standards to Head Start facilities.

Your constituents ask that NHTSA inform the Minnesota Department of Transportation that we do not require school bus manufacturers to provide school bus equipment, such as stop arms and special stop lights, on Head Start buses. They base this request on their belief that in 1985, NHTSA said that states may decide which regulations should apply to Head Start buses. They also believe that stop arms and lights for Head Start buses are unnecessary, and that painting Head Start buses yellow could be confusing.

We cannot provide the requested interpretation, because the understanding of your constituents is incorrect. By way of background, your constituents' concerns relate to two sets of regulations, issued under different Acts of Congress. The first of these, the Federal motor vehicle safety standards (FMVSS's) issued under the National Traffic and Motor Vehicle Safety Act ("Safety Act"), apply to the manufacture and sale of new motor vehicles. NHTSA has issued a number of FMVSS's for school buses, including FMVSS's requiring these buses to have a stop arm and warning lights. The Safety Act requires that each person selling a new bus (defined in our regulations as a vehicle designed for 11 or more persons) to a primary, preprimary or secondary school must sell a bus that is certified to the FMVSS's for school buses. State law cannot change this requirement.

The question of whether Head Start facilities are "schools" under the Safety Act has been addressed by NHTSA since the beginning of the school bus FMVSS's. The agency's longstanding position is that Head Start programs are primarily educational in focus rather than custodial, and are therefore "schools" under the Safety Act. We base this conclusion on a review of the goals and functions of the Head Start program (see, e.g., 45 CFR 1304.1-3), and on past NHTSA interpretations of "school." NHTSA has stated its position that Head Start facilities are schools most recently in an August 21, 1992 letter to Mr. Chuck Anderson of the Minnesota Department of Transportation. Any new bus that is sold to a Head Start facility must have the safety features of a school bus at the time of the vehicle's sale, including the stop arm and signal lights.

However, the Safety Act does not require Head Start facilities to use school buses or any other particular vehicle, nor does it require school buses to be painted yellow. The maintenance and operational characteristics of school buses are matters left to the individual states. We stated this in NHTSA's September 27, 1985 letter to Mr. Charles Pekow, to which you refer in your letter. To clarify your understanding of the letter, NHTSA stated that "The requirements for school bus operation and maintenance ... are matters left to the individual states to determine." (Emphasis added.) NHTSA's second set of school bus regulations, issued under the Highway Safety Act, is a set of recommendations to the states for developing effective pupil transportation programs. Highway Safety Program Guideline No. 17, "Pupil Transportation Safety" (copy enclosed), recommends that any vehicle designed for 11 or more persons that is used as a school bus should comply with the FMVSS's for school buses and should be painted yellow. However, Guideline 17 would affect the operation of your constituents' school buses only to the extent that Minnesota has incorporated it into state law.

I hope this information will be helpful in responding to your constituents.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:VSA d.1/26/93

ID: nht93-1.19

DATE: January 26, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Paul David Wellstone -- United States Senate

TITLE: None

ATTACHMT: Attached to letter dated 12/22/92 from Paul David Wellstone to Paul J. Rice (OCC 8181)

TEXT:

Thank you for your letter on behalf of your constituents, Ms. Tutti Sherlock and Ms. Mary Bock, regarding the application of the National Highway Traffic Safety Administration's (NHTSA's) school bus standards to Head Start facilities.

Your constituents ask that NHTSA inform the Minnesota Department of Transportation that we do not require school bus manufacturers to provide school bus equipment, such as stop arms and special stop lights, on Head Start buses. They base this request on their belief that in 1985, NHTSA said that states may decide which regulations should apply to Head Start buses. They also believe that stop arms and lights for Head Start buses are unnecessary, and that painting Head Start buses yellow could be confusing.

We cannot provide the requested interpretation, because the understanding of your constituents is incorrect. By way of background, your constituents' concerns relate to two sets of regulations, issued under different Acts of Congress. The first of these, the Federal motor vehicle safety standards (FMVSS's) issued under the National Traffic and Motor Vehicle Safety Act ("Safety Act"), apply to the manufacture and sale of new motor vehicles. NHTSA has issued a number of FMVSS's for school buses, including FMVSS's requiring these buses to have a stop arm and warning lights. The Safety Act requires that each person selling a new bus (defined in our regulations as a vehicle designed for 11 or more persons) to a primary, preprimary or secondary school must sell a bus that is certified to the FMVSS's for school buses. State law cannot change this requirement.

The question of whether Head Start facilities are "schools" under the Safety Act has been addressed by NHTSA since the beginning of the school bus FMVSS's. The agency's longstanding position is that Head Start programs are primarily educational in focus rather than custodial, and are therefore "schools" under the Safety Act. We base this conclusion on a review of the goals and functions of the Head Start program (see, e.g., 45 CFR 1304.1-3), and on past NHTSA interpretations of "school." NHTSA has stated its position that Head Start facilities are schools most recently in an August 21, 1992 letter to Mr. Chuck Anderson of the Minnesota Department of Transportation. Any new bus that is sold to a Head Start facility must have the safety features of a school bus at the time of the vehicle's sale, including the stop arm and signal lights.

However, the Safety Act does not require Head Start facilities to USE school buses or any other particular vehicle, nor does it require school buses to be painted yellow. The maintenance and operational characteristics of school buses are matters left to the individual states. (1) NHTSA's second set of school bus regulations, issued under the Highway Safety Act, is a set of recommendations to the states for developing effective pupil transportation

programs. Highway Safety Program Guideline No. 17, "Pupil Transportation Safety" (copy enclosed), recommends that any vehicle designed for 11 or more persons that is used as a school bus should comply with the FMVSS's for school buses and should be painted yellow. However, Guideline 17 would affect the operation of your constituents' school buses only to the extent that Minnesota has incorporated it into state law.

I hope this information will be helpful in responding to your constituents.

(1) We stated this in NHTSA's September 27, 1985 letter to Mr. Charles Pekow, to which you refer in your letter. To clarify your understanding of the letter, NHTSA stated that "The requirements for school bus OPERATION AND MAINTENANCE ... are matters left to the individual states to determine. (Emphasis added.)

Attachment

Copy of Federal Register, Vol. 56, No. 81, Rules and Regulations pertaining to Part 1204.4, Pupil Transportation Safety. (Text omitted.)

ID: 10204

Albert W. Unrath, Sr., President
Albert W. Unrath, Inc.
P.O. Box 631
Colmar, PA 18915

Dear Mr. Unrath:

This responds to your request for an interpretation of how NHTSA's regulations apply to your company's plans to refurbish used vehicles. In a telephone conversation with Dorothy Nakama of my staff, you explained that after refurbishing, the vehicles will have lower gross vehicle weight ratings (GVWRs). You wish to know whether you could add a label showing the lower GVWR to the vehicles' original certification label (which you refer to as the "original Vin Plate").

As explained below, NHTSA does not require the supplementary label on a refurbished--and not newly manufactured--used vehicle. We would, however, encourage you to add the label on the refurbished vehicles, since the label would provide important safety information to the vehicle operator. On the other hand, the modifications you make to the vehicle could be so extensive that the resulting vehicle is considered "new" under our regulations. If the vehicle is a new vehicle, you must certify the vehicle as complying with all applicable Federal motor vehicle safety standards (FMVSS's), and include on your certification label the new GVWR of the vehicle.

Based on the information you provided, the vehicles you are refurbishing are "trucks" under section 571.3 of our regulations. Section 571.3 defines a "truck" as a motor vehicle with motive power "designed primarily for the transportation of property or special purpose equipment." You provided two photographs of the vehicles after they have been refurbished. Your photographs show the refurbished vehicles as carrying 4' x 8' "Advanced Warning Flashing Arrow" signs on flat beds. Since your vehicles are designed for transporting property or special purpose equipment, the vehicles are "trucks" under 571.3.

You describe your refurbishing process in your letter. You state that you will take a used truck with a GVWR of 45,000 or 80,000 pounds (lbs.), "scrap" the body, and check remaining truck parts such as the subframe, brakes, steering system, axles, and

suspension. You will repair and replace those parts, as needed. Next, you will clean and paint the frame and running gear, and add a new support frame and "attenuator mounting hardware with braces." After the vehicle is refurbished, its GVWR will be approximately 25,500 lbs.

As a general rule, NHTSA has no requirements for "used" vehicles. Whether a vehicle is considered new or used depends on the origin of its parts. For example, we regard an assemblage of a new body on a chassis of a vehicle that was previously registered for use on the public roads to be a "used" vehicle and therefore not subject to the FMVSS's. When a modified chassis is being used in the refurbishment, NHTSA has a regulation (49 CFR section 571.7(e)) for determining when the modifications to the used chassis are so extensive that the resulting vehicle will be considered new for the purposes of the FMVSS's. Section 571.7(e) states:

When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured . . ., unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle. It does not appear that you plan to add a new engine, transmission, or drive axle to each refurbished truck. If you leave the requisite components specified in section 571.7(e) in place from the previous vehicle, we would consider the vehicle you produce to be a used vehicle. However, please keep in mind that you would be subject to the provisions of 49 U.S.C. section 30122(b), which provides that:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard . . .

This means that the refurbished truck must continue to meet the FMVSS's that it met before the modification, such as those for braking, lighting and safety belt systems. Any violation of this "make inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

You ask whether, after refurbishing the used truck, your company may affix additional labels with a new GVWR to reflect the lower GVWR. Since NHTSA generally does not regulate used vehicles, we do not require or prohibit the addition of a supplementary GVWR label. However, we would encourage you to add the supplementary GVWR label to the vehicle.

As you note, in an interpretation letter of May 24, 1993 to the American Association of Blood Banks (AABB), NHTSA recognized that certain modifications that might be made to a used vehicle (e.g., adding or deleting an axle) could make the originally assigned GVWR inappropriate for the vehicle as modified. In the letter to the AABA, NHTSA stated that although it is not required by our regulations, we believe it would be appropriate in these situations to add a label to the vehicle which indicates the appropriate loaded weight of the modified vehicle. Similarly, in your case, since the GVWR of the refurbished trucks would be much lower than that indicated on the certification label, we believe it would be appropriate for your company to add a label to the trucks which indicates the appropriate loaded weight of the refurbished truck.

As noted at the beginning of this letter, it is possible that your modifications could result in a "new" vehicle. You indicate that, if needed, you could replace the vehicle's subframe, brakes, steering system, axles, suspension, and/or support frame. If you were to remove all the drive components from the frame of the original vehicle and add new drive components or rebuilt drive components from different vehicles, the vehicle would be a new vehicle and would have to be certified by you as complying with all applicable FMVSS's in effect on the date of the remanufacture of the new vehicle.

You also asked that NHTSA "approve" your proposed operations. NHTSA has no authority to "approve" refurbishing operations. Under our regulations, manufacturers of new vehicles "self-certify" that their vehicles comply with all applicable FMVSS's. Likewise, businesses refurbishing used vehicles must assure themselves that the resulting vehicle continues to meet the FMVSS's that it met before the modification. NHTSA can examine the refurbisher's determination in the context of an enforcement proceeding.

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

Sincerely,

Philip R. Recht Chief Counsel ref:567 d:10/11/94

ID: nht94-4.47

TYPE: INTERPRETATION-NHTSA

DATE: October 11, 1994

FROM: Recht, Philip R. -- Chief Counsel, NHTSA

TO: Unrath, Albert W., Sr. -- President, Albert W. Unrath, Inc.

TITLE: NONE

ATTACHMT: Attached To A Letter Dated 7/5/94 From Albert W. Unrath, SR. To John Womack (OCC 10204)

TEXT: This responds to your request for an interpretation of how NHTSA's regulations apply to your company's plans to refurbish used vehicles. In a telephone conversation with Dorothy Nakama of my staff, you explained that after refurbishing, the vehicles wil l have lower gross vehicle weight ratings (GVWRs). You wish to know whether you could add a label showing the lower GVWR to the vehicles' original certification label (which you refer to as the "original Vin Plate").

As explained below, NHTSA does not require the supplementary label on a refurbished -- and not newly manufactured -- used vehicle. We would, however, encourage you to add the label on the refurbished vehicles, since the label would provide important saf ety information to the vehicle operator. On the other hand, the modifications you make to the vehicle could be so extensive that the resulting vehicle is considered "new" under our regulations. If the vehicle is a new vehicle, you must certify the vehi cle as complying with all applicable Federal motor vehicle safety standards (FMVSS's), and include on your certification label the new GVWR of the vehicle.

Based on the information you provided, the vehicles you are refurbishing are "trucks" under section 571.3 of our regulations. Section 571.3 defines a "truck" as a motor vehicle with motive power "designed primarily for the transportation of property or special purpose equipment." You provided two photographs of the vehicles after they have been refurbished. Your photographs show the refurbished vehicles as carrying 4' x 8' "Advanced Warning Flashing Arrow" signs on flat beds. Since your vehicles are designed for transporting property or special purpose equipment, the vehicles are "trucks" under 571.3.

You describe your refurbishing process in your letter. You state that you will take a used truck with a GVWR of 45,000 or 80,000 pounds (lbs.), "scrap" the body, and check remaining truck parts such as the subframe, brakes, steering system, axles, and s uspension. You will repair and replace those parts, as needed. Next, you will clean and paint the frame and running gear, and add a new support frame and "attenuator mounting hardware with braces." After the vehicle is refurbished, its GVWR will be app roximately 25,500 lbs.

As a general rule, NHTSA has no requirements for "used" vehicles. Whether a vehicle is considered new or used depends on the origin of its parts. For example, we regard an assemblage of a new body on a chassis of a vehicle that was previously registere d for use on the public roads to be a "used" vehicle and therefore not subject to the FMVSS's. When a modified chassis is being used in the refurbishment, NHTSA has a regulation (49 CFR section 571.7(e)) for determining when the modifications to the use d chassis are so extensive that the resulting vehicle will be considered new for the purposes of the FMVSS's. Section 571.7(e) states:

When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured . . ., unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle.

It does not appear that you plan to add a new engine, transmission, or drive axle to each refurbished truck. If you leave the requisite components specified in section 571.7(e) in place from the previous vehicle, we would consider the vehicle you produc e to be a used vehicle. However, please keep in mind that you would be subject to the provisions of 49 U.S.C. section 30122(b), which provides that:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle . . . in compliance with an applicable Federal motor vehicle safety s tandard . . .

This means that the refurbished truck must continue to meet the FMVSS's that it met before the modification, such as those for braking, lighting and safety belt systems. Any violation of this "make inoperative" prohibition would subject the violator to a potential civil penalty of up to $ 1,000 for each violation.

You ask whether, after refurbishing the used truck, your company may affix additional labels with a new GVWR to reflect the lower GVWR. Since NHTSA generally does not regulate used vehicles, we do not require or prohibit the addition of a supplementary GVWR label. However, we would encourage you to add the supplementary GVWR label to the vehicle.

American Association of Blood Banks (AABB), NHTSA recognized that certain modifications that might be made to a used vehicle (e.g., adding or deleting an axle) could make the originally assigned GVWR inappropriate for the vehicle as modified. In the let ter to the AABA, NHTSA stated that although it is not required by our regulations, we believe it would be appropriate in these situations to add a label to the vehicle which indicates the appropriate loaded weight of the modified vehicle. Similarly, in your case, since the GVWR of the refurbished trucks would be much lower than that indicated on the certification label, we believe it would be appropriate for your company to add a label to the trucks which indicates the appropriate loaded weigt of the r efurbished truck.

As noted at the beginning of this letter, it is possible that your modifications could result in a "new" vehicle. You indicate that, if needed, you could replace the vehicle's subframe, brakes, steering system, axles, suspension, and/or support frame. If you were to remove all the drive components from the frame of the original vehicle and add new drive components or rebuilt drive components from different vehicles, the vehicle would be a new vehicle and would have to be certified by you as complying with all applicable FMVSS's in effect on the date of the remanufacture of the new vehicle.

You also asked that NHTSA "approve" your proposed operations. NHTSA has no authority to "approve" refurbishing operations. Under our regulations, manufacturers of new vehicles "self-certify" that their vehicles comply with all applicable FMVSS's. Like wise, businesses refurbishing used vehicles must assure themselves that the resulting vehicle continues to meet the FMVSS's that it met before the modification. NHTSA can examine the refurbisher's determination in the context of an enforcement proceedin g.

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

ID: nht95-2.97

TYPE: INTERPRETATION-NHTSA

DATE: May 25, 1995

FROM: Kenneth Zawlocki

TO: Chief Counsel

TITLE: Re: US DOT - NHTSA - FMVSS218

ATTACHMT: ATTACHED TO 8/29/95 LETTER FROM JOHN WOMACK TO KENNETH ZAWLOCKI (REDBOOK 2; STD. 218)

TEXT: It is my interpretation of FMVSS218 that the Helmet Penetration Test is for the outer shell of the helmet and the Impact Attenuation Test is for the inner proctectant. Of course the Retention Test is for the straps that hold the helmet on the head. I c annot find any specifications as to what kind or how much material is to be used in the manufacturing of said helmets. Also, there is no specific language to the effect the helmet may not be covered with materials such as wigs, caps, cloth, etc. Theref ore, would you please clarify the following points for me:

1. Is the Penetration Test (S7.2) for testing the penetration of the outer shell?

2. Is the Impact Attenuation Test (S7.14) for testing types of impact material to prevent head injuries?

3. Is the Retention Test (S7.3) for testing straps that retain the brim of the helmet onto the head?

4. Are there any specifications in FMVSS218 as to what type and how much material can be used in the manufacturing of helmets?

5. Are there any stipulations in FMVSS218 that you cannot decorate a helmet with any material (leather, cloth), wigs, flowers, decals, hats, etc.?

I look forward to your reply; thank you for your assistance in this matter.

ID: 10786

Ms. Barbara Bailey
Administrative Assistant
Camp Berachah Christian Retreat Center
19830 S.E. 328th Place
Auburn, WA 98092-2212

Dear Ms. Bailey:

This responds to your letter and telephone call to Walter Myers of this office asking two questions about new 15-passenger vans that Camp Berachah leased from a dealer. I apologize for the delay in this response.

You first asked whether we require the leased vans to comply with our Federal motor vehicle safety standards (FMVSS) for school buses. You also asked whether we require the vans to comply with those FMVSSs if Camp Berachah loaned or subleased them to a school. Subject to a few considerations, the answer to both questions is no.

Some background information on our school bus regulations would be helpful. Our regulations require any person selling or leasing a new vehicle to sell or lease a vehicle that meets all FMVSSs applicable to that vehicle. Accordingly, persons selling or leasing a new school bus must sell or lease a vehicle that meets the FMVSSs applicable to school buses. Under 49 U.S.C. '30101, et seq. (referred to as Safety Act), a school bus is any vehicle that carries 11 or more persons and which is likely to be significantly used to transport students to or from school or related events. Thus, persons selling or leasing a new vehicle that carries 11 or more persons and which is likely to be significantly used to carry students is selling or leasing a new school bus. That means that the new vehicle must meet the school bus FMVSSs.

The FMVSSs apply only to new vehicles prior to sale to the first retail purchaser. The onus of complying with the school bus regulations is mainly on the seller or dealer to ensure that each new school bus it sells or leases has been certified to the school bus FMVSSs. The purchaser, on the other hand, is

not subject to such constraints. Under our school bus regulations, the purchaser is free to use any vehicle to transport school children. That is because this agency does not regulate the use of vehicles once they have been sold at retail.

Turning to your questions, we answer no to your first question based on the following. It was unclear from your letter whether Camp Berachah is connected with a school. In directing NHTSA to issue its school bus regulations, Congress considered buses used to transport children to camps connected with schools to be subject to the school bus FMVSSs. However, you clarified the nature of Camp Berachah in your conversation with Mr. Myers. You said that Camp Berachah is independent from any school and is not in any way affiliated with a school. Based on that information, Camp Berachah does not appear to be a school. Thus, our school bus regulations do not require the leasing of complying school buses for Camp Berachah purposes.

In your second question, you asked whether the new leased vans had to comply with the school bus FMVSSs if Camp Berachah lent, rented or subleased them to a school. The answer depends on whether the vans are significantly used for pupil transportation, and if so, whether the dealer knew or should have known of such use. New vans that are likely to be significantly used to transport school children would be school buses, and the dealer leasing the new van is required to lease certified school buses. Use of the vans on a one-time or occasional basis would not constitute significant use as a school bus. However, if Camp Berachah were to sublease the vans to a school for long-term use, we believe the use of those vans for school transportation would be significant within the meaning of the Safety Act. Accordingly, the leasing company could not lease a new van for this purpose.

You should also note that the states have the authority to regulate the use of vehicles by motorists. Thus, although NHTSA does not require the sale or use of complying school buses in the situations you described, Washington does have such authority. You may wish to contact the state director of pupil transportation to learn more about any state requirements applicable to vehicles used as school buses.

In closing, we would like to note that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all 15- passenger vans that are used to transport school children be certified as meeting the school bus safety standards.

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

Sincerely,

John Womack Acting Chief Counsel

ref:571 d:5/30/95

ID: nht95-2.98

TYPE: INTERPRETATION-NHTSA

DATE: May 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Barbara Bailey -- Administrative Assistant, Camp Berachah Christian Retreat Center

TITLE: NONE

ATTACHMT: ATTACHED TO 3/8/95 LETTER FROM BARBARA BAILEY TO WALTER MYERS

TEXT: Dear Ms. Bailey:

This responds to your letter and telephone call to Walter Myers of this office asking two questions about new 15-passenger vans that Camp Berachah leased from a dealer. I apologize for the delay in this response.

You first asked whether we require the leased vans to comply with our Federal motor vehicle safety standards (FMVSS) for school buses. You also asked whether we require the vans to comply with those FMVSSs if Camp Berachah loaned or subleased them to a school. Subject to a few considerations, the answer to both questions is no.

Some background information on our school bus regulations would be helpful. Our regulations require any person selling or leasing a new vehicle to sell or lease a vehicle that meets all FMVSSs applicable to that vehicle. Accordingly, persons selling or leasing a new school bus must sell or lease a vehicle that meets the FMVSSs applicable to school buses. Under 49 U.S.C. @ 30101, et seq. (referred to as Safety Act), a school bus is any vehicle that carries 11 or more persons and which is likely to be significantly used to transport students to or from school or related events. Thus, persons selling or leasing a new vehicle that carries 11 or more persons and which is likely to be significantly used to carry students is selling or leasing a new schoo l bus. That means that the new vehicle must meet the school bus FMVSSs.

The FMVSSs apply only to new vehicles prior to sale to the first retail purchaser. The onus of complying with the school bus regulations is mainly on the seller or dealer to ensure that each new school bus it sells or leases has been certified to the sc hool bus FMVSSs. The purchaser, on the other hand, is not subject to such constraints. Under our school bus regulations, the purchaser is free to use any vehicle to transport school children. That is because this agency does not regulate the use of ve hicles once they have been sold at retail.

Turning to your questions, we answer no to your first question based on the following. It was unclear from your letter whether Camp Berachah is connected with a school. In directing NHTSA to issue its school bus regulations, Congress considered buses u sed to transport children to camps connected with schools to be subject to the school bus FMVSSs. However, you clarified the nature of Camp Berachah in your conversation with Mr. Myers. You said that Camp Berachah is independent from any school and is not in any way affiliated with a school. Based on that information, Camp Berachah does not appear to be a school.

Thus, our school bus regulations do not require the leasing of complying school buses for Camp Berachah purposes.

In your second question, you asked whether the new leased vans had to comply with the school bus FMVSSs if Camp Berachah lent, rented or subleased them to a school. The answer depends on whether the vans are significantly used for pupil transportation, and if so, whether the dealer knew or should have known of such use. New vans that are likely to be significantly used to transport school children would be school buses, and the dealer leasing the new van is required to lease certified school buses. U se of the vans on a one-time or occasional basis would not constitute significant use as a school bus. However, if Camp Berachah were to sublease the vans to a school for long-term use, we believe the use of those vans for school transportation would be significant within the meaning of the Safety Act. Accordingly, the leasing company could not lease a new van for this purpose.

You should also note that the states have the authority to regulate the use of vehicles by motorists. Thus, although NHTSA does not require the sale or use of complying school buses in the situations you described, Washington does have such authority. You may wish to contact the state director of pupil transportation to learn more about any state requirements applicable to vehicles used as school buses.

In closing, we would like to note that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all 15-passenger vans that are used to transport school children be certified as meeting the school b us safety standards.

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

ID: 06-007883as