ID: nht87-1.41

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: THERESA ROONEY -- ALPINE ELECTRONICS OF AMERICA, INC.

TO: ED GLANCY -- LEGAL COUNSEL, FMVSS-101 NHTSA

TITLE: RE: FMVSS-101

ATTACHMT: ATTACHED TO LETTER DATED 3/07/89 FROM ERIKA Z. JONES -- NHTSA TO THERESA ROONEY, REDBOOK A33, STANDARD 101

TEXT: Dear Mr. Glancy:

I am writing to you on recommendation from Mr. Cavey of the National Highway Traffic Safety Association. He suggested that I might contact you to get written confirmation of our interpretation of the above ruling to be enacted 9/1/89.

It is my understanding that any car sound system which has been factory installed must be equipped with light intensities that have two values, a higher one for day, and lower one for night. These two light intensities do not have to be variable and any color may be used to illuminate the system.

If possible, I would like to receive written confirmation of this correct interpretation from your office for our records.

Any assistance that you may provide in this matter would be greatly appreciated.

Sincerely,

ID: nht94-2.64

TYPE: INTERPRETATION-NHTSA

DATE: May 2, 1994

FROM: Paul L. Anderson -- President, Van-Con Inc.

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: Re: Items Applicable To Type A-1 School Buses Under 10,000 Lbs. Gross Vehicle Weight In New 217 FMVSS.

ATTACHMT: Attached To Letter Dated 5/18/94 From John Womack To Paul Anderson (A42; Std. 217)

TEXT: Dear Mr. Womack:

Please advis us of the items applicable to Small School Buses, Sixteen & Twenty Passenger, less than 10,000 lbs. Gross Vehicle Weight pertinent to the new 217 FMVSS.

We were told earlier by Mr. Charles Hott that the reflective marking tape outlining Rear Emergency Doors was not required on Type A-1 School Buses.

Please tell us if Type A-1 School Buses need the following items:

1. Roof Hatches ? 2. Push Out Windows on each side ? 3. Reflective Marking Tape around Emergency Rear Doors ?

We received a notice today that the new standard 217 will not become effective until September 1, 1994 and that it only applys to School Buses with capacity of 24 to 90 passengers.

Very truly yours,

ID: nht93-6.34

DATE: September 8, 1993

FROM: Christopher S. Spencer -- Engineering

TO: R. C. Carter -- U.S. Department of Transportation

TITLE: None

ATTACHMT: Attached to letter dated 4/25/94 from John Womack to Christopher S. Spencer (A42; Std. 121)

TEXT:

Allow me to introduce myself to you. I am an engineer at a manufacturer of air reservoirs for air braking systems. I am looking at modifying a present design. The new design is to improve the volume without increasing the need for more space. This design is to maintain a low cost as well. There is a problem with how to interpret the FMVSS-121 that I would like for you to help evaluate for me. According to FMVSS-121 Section S5.1.2.2 this reservoir should withstand a defined amount of pressure for 10 minutes. Generally speaking, this is 750 p.s.i. The safety standard does not clarify the test criteria specifically how the reservoir is to be sealed. We have tested two different ways. One shows acceptable results 100% of the time. The second way is not as impressive. Some people here say that both are valid test. My question to you is can we check reservoirs in either way. Why or why not. I look forward to hearing from you.

ID: nht94-6.6

DATE: May 2, 1994

FROM: Paul L. Anderson -- President, Van-Con Inc.

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: Re: Items Applicable To Type A-1 School Buses Under 10,000 Lbs. Gross Vehicle Weight In New 217 FMVSS.

ATTACHMT: Attached To Letter Dated 5/18/94 From John Womack To Paul Anderson (A42; Std. 217)

TEXT: Dear Mr. Womack:

Please advis us of the items applicable to Small School Buses, Sixteen & Twenty Passenger, less than 10,000 lbs. Gross Vehicle Weight pertinent to the new 217 FMVSS.

We were told earlier by Mr. Charles Hott that the reflective marking tape outlining Rear Emergency Doors was not required on Type A-1 School Buses.

Please tell us if Type A-1 School Buses need the following items:

1. Roof Hatches ? 2. Push Out Windows on each side ? 3. Reflective Marking Tape around Emergency Rear Doors ?

We received a notice today that the new standard 217 will not become effective until September 1, 1994 and that it only applys to School Buses with capacity of 24 to 90 passengers.

Very truly yours,

ID: 08-007276as smidler

ID: 11233

Mr. James J. Gregorio
6704 Forsythia St.
Springfield, VA 22150

Dear Mr. Gregorio:

This responds to your letter of September 23, 1995, requesting "authorization to modify the car seat in my 1992 Plymouth Acclaim." Your letter states:

Presently, my car is equipped with hand controls which alleviates a condition of chronic tendinitis in my right ankle. Unfortunately, there is practically no room between the hand controls and my knees. My knees constantly bang up against the hand controls. The resulting consequence is that I now have tendinitis in both knees. Modifying the car seat will allow me to push the car seat back far enough to give space to my injured knees.

You enclosed a letter from your physician stating that recovery could take several years.

In summary, our answer is that you may have your vehicle modified. NHTSA will not institute enforcement proceedings against a repair business that modifies the seat on your vehicle to accommodate your condition. A more detailed answer to your letter is provided below.

I would like to begin by noting that repair businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to certain regulatory limits on the type of modifications they may make. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a repair business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities. Since your situation is among those given special consideration by NHTSA, this letter should provide you with the relief you seek.

Our agency is authorized to issue Federal Motor Vehicle Safety Standards (FMVSS) that set performance requirements for new motor

vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable FMVSS. In general, the "make inoperative" prohibition would require repair businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable FMVSS. Violations of this prohibition are punishable by civil fines up to $1,000 per violation.

Moving a seat, and presumably moving the seat belts for the seat, could affect compliance with four safety standards: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, and Standard No. 210, Seat Belt Assembly Anchorages. Your letter does not provide any information regarding why the modification to your seat cannot be done in a way that would not violate the make inoperative prohibition.

However, in situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider any violations of the "make inoperative" prohibition a purely technical one justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a repair business that modifies the seat on your vehicle to accommodate your condition.

We caution, however, that only necessary modifications should be made to the seat, and the person making the modifications should consider the possible safety consequences of the modifications. For example, in moving a seat, it is critical that the modifier ensure that the seat is solidly anchored in its new location. You should also be aware that an occupant of a seat which has been moved rearward may have less protection in a crash if the seat is too far rearward relative to the anchorages of the safety belts for that seat. Finally, if you sell your vehicle, we encourage you to advise the purchaser of the modifications.

I hope this information has been helpful. If you have any other questions or need some additional information in this area, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

ref:VSA#207#208 d:11/7/95

ID: 30102ad_aerial_work_platform

Mr. Mark A. Rangos
Manager, Product Support
Product Safety and Reliability Dept.
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533

Dear Mr. Rangos:

This responds to your letter of December 8, 2003, concerning requirements for trailer-mounted aerial work platforms that are being developed by JLG Industries, Inc. (JLG), which are used primarily to lift personnel and materials to elevated work locations in industrial or construction environments.

You state that the aerial work platform structure is mounted upon a trailer chassis for the sole purpose of portability, to move the machine from one job site to another to perform its primary function as an aerial work platform. In a normal application, the machine is towed to a job site and set up for utilization. To be prepared for use, the machine must be maneuvered into position in proximity to the work location. Once in position, the stabilizers are deployed to stabilize and level the chassis. You also state that the machine may remain on the job site for "hours, days, months, or extended periods." Lastly, you claim that towing the machine upon the streets, roads, or highways is incidental to its use on job sites and performed only for the purpose of transfer to work locations. You asked us to confirm your interpretation that this machine would not be considered a "motor vehicle" as specified under the National Traffic and Motor Vehicle Safety Act. For the reasons that follow, we confirm your understanding.

By way of background, Chapter 301 of Title 49, U.S. Code (U.S.C.) (Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to establish Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act defines a "motor vehicle" as:

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

49 U.S.C. 30102(a)(6).

If a vehicle is a motor vehicle under the above definition, then it must comply with all applicable FMVSS. However, if a vehicle is not a motor vehicle under this definition, then it need not comply with the agencys safety standards.

Whether the agency will consider construction equipment, such as an aerial work platform structure that is mounted upon a trailer chassis, to be a motor vehicle depends upon its use. It is the agencys position that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between jobsites and which typically spend extended periods of time at a single jobsite. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured.

However, in those cases where certain types of construction equipment make more frequent use of the roadways, the agency has determined such equipment to be a motor vehicle under the Safety Act. For example, dump trucks have been determined to be motor vehicles because they regularly use the highways to travel between jobsites and stay on such jobsites for only a limited period of time, thereby rendering their on-highway use more than "incidental."

Your letter states that the aerial work platform structure is mounted upon a trailer chassis and may be towed from jobsite to jobsite. Your letter goes on to state that the duration of the aerial work platform structures use on jobsites is variable, ranging from "hours, days, months, or extended periods."

Based upon the information and literature you have provided, it does not appear that your aerial work platform structures are "motor vehicles" as that term is defined in the Safety Act. This conclusion is based upon the assumption that your equipment generally spends extended periods of time at a single construction site and only uses the public roads infrequently to travel between jobsites. Accordingly, your aerial work platform structures would not be subject to the FMVSS.

However, if the agency were to receive additional information indicating that the aerial work platform structures use the road more than on an incidental basis, then the agency would reassess this interpretation.

I hope this information is helpful. If you have any further questions regarding NHTSAs safety standards, please feel free to contact Edward Glancy of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:VSA
d.4/1/04

ID: 11526DRN

Michael A. Tonelli, Esq.
Barr, Murman, Tonelli, Herzfeld & Rubin
First of America Plaza
201 East Kennedy Blvd., Suite 901
Tampa, FL 33672-0118

Dear Mr. Tonelli:

This responds to your letter to Mr. Charles Gauthier, formerly of this agency, asking whether multipurpose passenger vehicles (MPVs) must meet Federal standards for passenger cars. We have addressed this question in a December 26, 1995 letter to Jane Thorntorn Mastrucci, Esq. A copy of our letter to Ms. Mastrucci is enclosed.

You also asked for the current "Federal Motor Vehicle Safety Standards [FMVSSs] regarding student transportation" and a copy of the current Highway Safety Program Guideline No. 17 "Pupil Transportation Safety." Due to the volume of the material, we are unable to provide copies of the school bus FMVSSs. However, they are readily available at Title 49 of the Code of Federal Regulations (CFR) Part 571. For your reference, I have enclosed an information sheet that describes ways to obtain the material. Enclosed is a copy of Guideline No. 17, which is set forth at 23 CFR '1204.4.

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

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosures

ref:vsa#571.3 d:3/4/96

ID: nht90-3.47

TYPE: Interpretation-NHTSA

DATE: August 2, 1990

FROM: Samuel Kimmelman -- Engineering Product Manager, IDEAL Division, EPICOR Industries, Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8-31-90 from P.J. Rice to S. Kimmelman (A36; Std. 108)

TEXT:

When a new car, light truck or van is purchased and delivered to the buyer with a dealer installed trailer hitch and associated wiring, it is our understanding that at the time of delivery the vehicle must comply with all applicable Federal Motor Vehicle Safety Standards.

We further interpret the Standards to require the following:

1. The turn signal flasher must be certified as meeting the FMVSS-108 requirements of a variable load turn signal flasher, over a minimum load equal to that of the vehicle turn signal load and a maximum load equal to that of the vehicle plus the trailer .

2. The hazard warning flasher must be certified as meeting the require- ments of FMVSS-108 over a load range of 2 lamps to the combined hazard warning loads of the vehicle plus the trailer.

3. The requirement to provide turn signal outage indication is voided due to the trailer towing capability of the vehicle.

Please inform us if the interpretations noted above agree with those of the Department of Transportation.

ID: nht91-5.43

DATE: September 10, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Rosemary Dunlap -- President, Motor Voters

TITLE: None

ATTACHMT: Attached to letter dated 6-19-91 from Rosemary Dunlap to Paul Jackson Rice (OCC 6150)

TEXT:

This responds to your letter seeking clarification of statements made by NHTSA's Associate Administrator for Rulemaking, Barry Felrice, at the July 1990 Public/Industry Meeting regarding possible federal preemption of proposed state disclosure legislation. Specifically, you requested us to provide legal support for Mr. Felrice's general statement that the National Traffic and Motor Vehicle Safety Act (Safety Act) may preempt state laws requiring safety information disclosures to be affixed to vehicles. During a telephone conversation on July 1, 1991, Elizabeth Barbour of my staff informed you that in order to provide an opinion as to whether the Safety Act would preempt a specific state bill, we would need to review the provisions of that bill as a whole. Accordingly, you forwarded a copy of California Assembly Bill No. 71 to this office and asked whether the bill, if enacted into law, would be federally preempted.

We have reviewed the California bill. Because the question of preemption could turn on how the State of California would interpret the language in the bill and how it would be enforced if adopted, we are declining to provide a specific opinion as to whether or not the bill would be preempted. However, our discussion identifies the principles under which the validity of such legislation can be determined.

The bill would add a new section 24011.5 to the California Vehicle Code to read as follows:

24011.5 (a) Every dealer or lessor shall affix to the dashboard or a window of every new multipurpose passenger vehicle sold or leased, or offered for sale or lease, a notice which specifies whether or not the vehicle meets the following federal safety standards applicable to passenger cars:

(1) Side door strength; (2) Roof crush resistance; (3) Passive restraint devices; (4) Raised brake light.

(b) The notice required by subdivision (a) shall not be smaller than 8 inches by 10 inches, and shall be printed in at least 20-point type and shall be affixed in such a manner as to be readily removable by the purchaser or lessee.

(c) As used in this section, "passenger car" and "multipurpose passenger vehicle" have the same meaning as defined in regulations adopted pursuant to the National Traffic and Motor Vehicle Safety Act . . . .

According to the California Legislative Counsel's Digest, other provisions of existing California law would make violation of this requirement a crime.

At the outset, I would like to note that NHTSA has recently extended its standards/requirements on side door strength (FMVSS 214, quasi-static requirements only), roof crush resistance (FMVSS 216), passive restraint devices (FMVSS 208), and raised brake light (FMVSS 108) to cover most multipurpose passenger vehicles (MPV's). The amendments will become effective over the next several years. Therefore, we believe that this bill will become largely superfluous during that timeframe, since most MPV's will be required to be certified as complying with the enumerated requirements. We note, however, that there may be some slight differences in the way these requirements are applied to MPV's and the way they currently apply to passenger cars.

By way of background information, Federal law, including agency regulations, can expressly or impliedly preempt state law. Under section 103(d) of the Safety Act, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard. A non-identical state standard preempted under section 103(d) would be an example of express preemption.

A requirement for a label related to safety could in some cases constitute a safety standard. For example, several Federal motor vehicle safety standards include requirements for permanent labels.

We do not, however, believe that the California bill would constitute a safety standard. Therefore, it would not be expressly preempted under section 103(d). While the bill would require an information sheet to be affixed to the vehicle, the information sheet would be readily removable by the purchaser or lessee. Thus, the information sheet is not intended to remain affixed to the vehicle after sale. The requirement that the information sheet be affixed to the vehicle appears to be solely for the purpose of ensuring that a prospective purchaser will see it, and is thus akin to a requirement that the information be prominently displayed in the dealer showroom.

Federal law impliedly preempts state law when (1) it is impossible to comply with both; (2) the federal interest in the field is so dominant that federalism principles prevent enforcement of complementary or auxiliary state laws; (3) the federal regulatory scheme is so pervasive as to be exclusive; or (4) state law hinders the accomplishment and execution of the full purposes and objectives of federal law. See Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145, 1150-51 (1988).

We do not believe that the California bill would be preempted under any of the first three factors cited above for implied preemption. The California bill would not make it impossible to comply with federal law. Further, the federal interest in this area is not so dominant that complementary state laws may not be enforced, and the federal regulatory scheme is not so pervasive as to be exclusive.

There remains the issue of whether the California bill would be preempted as a state law which hinders the accomplishment and execution of the full purposes and objectives of federal law. One problem in analyzing this question relates to the fact that we have difficulty understanding how the drafters of the California bill contemplate that the dealers/lessors subject to the requirements would be capable of complying with them.

Dealers/lessors would have no way of knowing whether an MPV met particular passenger car requirements unless the manufacturer advised them. For example, while dealers/lessors could visually determine whether an MPV had a passive restraint or raised brake light, they would not know whether those devices met Federal standards for passenger cars. Dealers/lessors obviously could not determine from inspection whether an MPV met the side door strength or roof crush resistance requirements applicable to passenger cars.

The drafters of the California bill may have assumed that dealers/lessors could obtain information from manufacturers concerning whether MPV's met particular requirements. However, even if manufacturers wanted to help their dealers comply with this requirement by providing such information, the manufacturers might not be able to do so. A manufacturer would not know whether its MPV's met certain passenger car standards unless it had conducted substantial testing. And it may not be possible to test some MPV's to passenger car standards, because of different vehicle configurations or other factors. If this were the case, it is unclear how anyone, including a manufacturer, would be able to determine whether an MPV met such a standard.

One of the purposes of the Safety Act that is emphasized in the legislative history is the need for uniform standards. If the bill were interpreted as going beyond requiring dealers/lessors to disclose what they or manufacturers know and instead to require manufacturers or others to undertake significant testing, it would impose burdens similar to the certification burdens of a safety standard. For some standards, such as those involving crash tests, these burdens are quite large. We believe that a state disclosure law that imposed significant testing burdens, in connection with an aspect of performance for which NHTSA has issued a safety standard or decided not to issue such standard, would hinder the objective of uniform standards and be preempted under federal law.

I hope this information is helpful to you.