ID: 11989.mls

Mr. Bradley J. Schnittjer
President
Satellite Screens, Inc.
221 East 2nd Street
DeWitt, IA 52742

Dear Mr. Schnittjer:

This responds to your inquiry about whether your product, a piece of equipment that screens materials, is a motor vehicle. You state that your product can either be trailer mounted or skid mounted. In a telephone conversation with Mr. Marvin Shaw of my staff, you stated that your trailer typically stays at an off-road job site the majority of the time and is infrequently transported on the public roads between job sites.

As way of background information, the National Highway Traffic Safety Administration (NHTSA) interprets and enforces the laws under which the Federal Motor Vehicle Safety Standards (FMVSSs) are promulgated. The statute defines the term "motor vehicle" as follows:

"Any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails."

Whether the agency considers your trailer mounted equipment to be a motor vehicle depends on its use. It is the agency's position that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of the Safety Act, since the on-highway use is more than "incidental."

Based on the available information, it appears that your equipment is not a "motor vehicle" within the meaning of the statutory definition. This conclusion is based on your statements in the above mentioned telephone conversation that this equipment typically spends extended periods of time at a single construction site and only uses the public roads infrequently to move between job sites. Thus, the agency would consider the use of your device on the public roads to be incidental and not its primary purpose. Since your equipment is not a motor vehicle, it would not be subject to our Federal Motor Vehicle Safety Standards.

If NHTSA were to receive additional information indicating that your equipment used the roads more than on an incidental basis, then the agency would reassess this interpretation. If the agency were to determine that your equipment is a motor vehicle, then it would have to comply with the applicable Standards, including Standard No. 108 Lamps, Reflective Devices, and Associated Equipment, which addresses conspicuity, Standard No. 119, New Pneumatic Tires for Vehicles Other Than Passenger Cars, and Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. The content requirements for the vehicle identification number are found at 49 CFR Part 565. In addition, while your vehicle is not required to be equipped with brakes, if it is equipped with hydraulic brakes, then you would need to use brake hoses and brake fluids that comply with Standard No. 106, Brake Hoses and Standard No. 116, Motor Vehicle Brake Fluids. Please note that trailers equipped with air brakes are required to comply with Standard No. 121, Air Brake Systems.

In addition, as a manufacturer of motor vehicles, you would be required to submit identification information to this agency in accordance with 49 CFR Part 566, Manufacturer Identification. You would also be required to certify that each trailer complies with all applicable Federal safety standards. This certification procedure is set out in 49 CFR Part 567.

Please note that since a State may require an off-road vehicle to be registered, you may wish to contact the States about the status of your equipment in their State.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Samuel J. Dubbin

Chief Counsel

ref:VSA

d:8/5/96

ID: 16337.drn

Mr. E. Hunter Stone, II
P. O. Box 61419
Denver, CO 80206-8419

Dear Mr. Stone:

This responds to your request for a "written corporate endorsement" of your invention the "Signal Square," which you describe as a "location marker for safety and emergency purposes" that can be temporarily attached to a motor vehicle. The invention is a bright orange rectangular piece of plastic approximately 41" by 40" plus two 6" long flat white magnets. As explained below, the National Highway Traffic Safety Administration (NHTSA) cannot endorse or otherwise "approve" your product. Since the product is "motor vehicle equipment," the manufacturer of your product may be subject to NHTSA's laws as described below.

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

Your product is "motor vehicle equipment" for the following reasons. Our statute (at 49 USC 30102(a)(7)) defines the term "motor vehicle equipment" as:

(A) any system, part, or component of a motor vehicle as originally manufactured;

(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle; or

(C) any device or an article or apparel ... that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death. (Emphasis added.)

The agency uses two criteria in determining whether a device is an "accessory." The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles. If a product satisfies both criteria, then the product would be an "accessory."

Applying these criteria to the "Signal Square," we conclude that it is an accessory to a motor vehicle. The product labeling describes the "Signal Square" as an "air and ground vehicle location marker." The label also describes how to place the "Signal Square" on the "steel, hood, top, flatbed and/or side of vehicle," and provides specific instructions on how to place the product on smaller vehicles.

Although we have no information about how the product will be advertised, from the product's labeling, we conclude that its expected use is related to the operation of a motor vehicle. Because of the detailed instructions provided in the label, we conclude that the product is intended to be purchased and principally used by ordinary users of motor vehicles.

Please note that NHTSA has issued Federal Motor Vehicle Safety Standard No. 125, Warning devices. Standard No. 125 establishes requirements for devices, without self-contained energy sources, that are designed to be carried in motor vehicles and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle. The application section (S3) states that: "the standard applies to devices, without self-contained energy sources, that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds."

If sold for use with buses and trucks with a GVWR greater than 10,000 pounds, the "Signal Square" must meet Standard No. 125's detailed specifications for a warning device. However, if the "Signal Square" is sold for use with vehicles with a GVWR under 10,000 pounds, Standard No. 125 would not apply.

Even if sold for use with vehicles with a GVWR under 10,000 pounds, and no safety standard applies, other NHTSA laws may apply to your product. As an accessory to a motor vehicle, the "Signal Square" is an item of "motor vehicle equipment." You (or whoever is the manufacturer of the "Signal Square") would be subject to Title 49 of the U.S. Code, sections 30118-30122, concerning the recall and remedy of products with defects related to motor vehicle safety. If the manufacturer or NHTSA determined that the product contains a safety related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

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

Sincerely,
John Womack
Acting Chief Counsel
d.12/29/97
ref:125#VSA

ID: 14386.drn

Mr. Ronald J. Hemmer
Engineering Manager
DuraTech
P. O. Box 1940
Jamestown, ND 58402-1940

Dear Mr. Hemmer:

This responds to your request for an interpretation whether your company's mobile industrial tub grinders must be assigned vehicle identification numbers (VIN) pursuant to 49 CFR Part 565, Vehicle identification number - basic requirements. As explained below, the answer is no.

Your letter stated that your company was asked to provide your "World Manufacturer Identification (WMI) Code." The WMI is the first three digits of a VIN and identifies a motor vehicle manufacturer. Your letter emphasizes that the grinders "are not used on the highway for commercial purposes." The grinders are mobile to facilitate towing from DuraTech to the buyer, which "may then use the highway system to get the machine from one jobsite to another." You enclosed six brochures, each describing a different model of an industrial tub grinder. The brochures describe the grinders as used for grinding timber and debris ranging from (depending on the model) tree limbs and yard waste, to large trees, construction debris, tires and demolition lumber.

In a telephone conversation with Dorothy Nakama of my staff, you explained that the length of time a grinder is at a job site depends on the task. The grinder could be at a tire dump or construction site for months at a time. You stated that the grinders very rarely stay at a job site for less than a week.

NHTSA's VIN requirement (49 CFR Part 565) applies only to "motor vehicles," within the meaning of 49 U.S.C. 30102(a)(6). That section defines "motor vehicle" as:

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

Whether the agency considers your grinders to be motor vehicles depends on their use. The statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of the Safety Act, since the on-highway use is more than "incidental."

Based on your description, it appears that your company's grinders are not motor vehicles. This is because the grinders stay on job sites for extended periods of time (usually for months) and only use the highway to move from site to site. Therefore, your grinders need not be assigned VINs pursuant to 49 CFR Part 565. I note that, if the agency were to receive additional information indicating that the grinders use the roads more than on an incidental basis, then the agency would reassess this interpretation.

Please note that since a State may require equipment such as your grinders to be registered, you may wish to contact the States about the status of your grinder in that State.

You also informed Ms. Nakama over the telephone that the Canadian government would require your grinders to be assigned VINs for sale in Canada. NHTSA and the Canadian government have independent requirements, and our determination that your grinders need not be assigned VINs would have no effect on Canadian requirements. NHTSA cannot prohibit your company from assigning VINs (in accordance with the format prescribed in Part 565) to your grinders to meet Canadian requirements.

However, since the grinders are not "motor vehicles," I would recommend that your company ensure that grinders sold in the U.S. not be assigned VINs. For U.S. purposes, assigning VINs to your grinders may cause confusion as to whether the grinders are "motor vehicles." If a DuraTech grinder had a VIN, state officials, including law enforcement officers and highway inspectors, reviewing the VIN may question why the grinder has no certification label pursuant to 49 CFR Part 567 Certification (i.e., certifying that a vehicle meets all applicable Federal Motor Vehicle Safety Standards (FMVSS)(at 49 CFR Part 571) applicable to the vehicle type), and why the grinder does not appear to meet such safety standards. Your U.S. customers may find it difficult to respond to such questions.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:565#VSA
d:6/4/97

ID: 23607.drn

Sean A. Cox, Manager
Xpress Rent-a-Car
2021 E. Platte Avenue
Colorado Springs, CO 80909





Dear Mr. Cox:

This responds to your September 6, 2001, letter requesting information about a "Federal law pertaining to the transportation of school age children." As explained below, Federal law restricts the types of new buses that you as a dealer, may lease or rent for school transportation purposes. However, it does not specify how school age children must be transported. Your state law (Colorado) regulates how school age children are to be transported.

The questions you raise have been addressed for the most part in the enclosed interpretation letter of May 9, 2001, to Collins Bus Corporation. In that letter, we explain dealers' responsibilities in selling new buses to day care centers that will be using the vehicles to transport children to or from schools.

The letter to Collins discusses prohibitions on sales of new buses that do not meet the National Highway Traffic Safety Administration's (NHTSA's) school bus standards. In addition, a dealer renting or leasing a new bus that will be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events must be sure to rent or lease a new bus that is certified as meeting NHTSA's school bus standards. You ask whether a child care provider could lease or rent a vehicle on a short term basis to replace one of their existing vehicles that may be unavailable due to mechanical reasons. In our opinion, generally a short term lease or rental in this circumstance would be permitted, to meet this atypical situation. A lease or rental of a new nonconforming bus for regular transportation would not be permitted, however, since that bus would be used significantly to transport students.

We are not authorized to regulate the lease or rental of used buses to transport students. If the buses in your fleet were not new, Federal law does not regulate their lease or rental as vehicles used to transport school children.

Before you make decisions about leasing or renting used vehicles to day care centers, however, please consider our letter to Collins Bus. As explained in that letter, on June 8, 1999, the National Transportation Safety Board (NTSB) issued a special investigative report on nonconforming buses (copy of abstract attached). The NTSB issued the report after investigating in 1998 and 1999 four crashes in which 9 people were killed and 36 injured when riding in nonconforming buses. NTSB defined "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

It is our opinion, and that of the NTSB, that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, NHTSA notes that using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

For your information, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than 15-person vans. Please be advised that there are small school buses (under 10,000 pound gross vehicle weight rating) available that seat 15 or fewer children. Because it would not be cost effective to do so, we do not recommend retrofitting 15-person vans to meet school bus standards. I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address, or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office, at (202) 314-6100.






Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:VSA#571.3
d.11/16/01

ID: a00473beltminder_cmc

Mr. Bruce H. Carraway, Jr.
Carraway Safety Belt Company
14 Kings Bridge
Atlanta, GA 30329

Dear Mr. Carraway:

This responds to your letter requesting that the National Highway Traffic Safety Administration (NHTSA) work towards requiring that ignition interlock belt-minder systems be installed in all new motor vehicles. As discussed below, the agency believes that improving safety belt use rates with vehicle-based incentives can best be accomplished through voluntary installation of such devices.

According to your letter, you are considering a system that would prevent a driver from starting a vehicle unless all occupants were buckled up. Your letter described a system that would employ seat sensors to alert a driver if any vehicle occupant has not fastened his or her safety belt. An interlock system then would prohibit the vehicle from being started until the safety belt is buckled at each occupied seat. You then ask the agency to:

Please introduce a bill, or, have someone on your transportation committee that handles highway safety to introduce a bill, and, pass a law requiring [such safety belt interlock systems] for all new vehicles.

NHTSA considers safety belt use as its top priority in occupant protection. For each percentage point gain in national usage, we estimate that we will prevent about 250 fatalities. In 2003, safety belt use reached its highest level ever, with a national use rate of 79 percent. This was an increase from the 75 percent use rate reported in 2002. To achieve this rate, we relied on an array of programs that we have developed over the past few years, such as the Click It or Ticket program. We continue to support and promote programs to increase the use of safety belts. In March of this year, we announced the availability of $36.4 million in grants for states that develop innovative projects to increase safety belt use.

With respect to vehicle-based safety belt incentives, Congress has provided the agency with specific direction. As part of the Motor Vehicle and School Bus Safety Amendments of 1974, Congress adopted a provision prohibiting NHTSA from requiring, or permitting as a compliance option, either ignition interlocks designed to prevent starting or operating a motor vehicle or buzzers that sounded for a period of more than 8 seconds after the ignition was turned to the "start" or "on" position (codified at 49 U.S.C. 30124).

This provision was the result of opposition from various members of Congress and from members of the public to the belt-induced interlocks and audible alerts that manufacturers were installing in their vehicles to meet the existing compliance options in Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection. Opposition was based on two factors: first, the low rate of belt use among the American public, 10 to 14 percent, meant that large portions of the population were subjected to either a 60 second audible warning or an ignition interlock; second, the available occupant detection technologies were insufficiently developed to determine reliably whether the two front outboard seating positions were occupied and the belt was being used by the occupant of a given seating position.

However, the legislative history indicates no intent on the part of Congress to prohibit manufacturers from voluntarily installing either interlocks or other belt system use-enhancement features. With increases to the national belt use rates since 1974, and improvements in occupant recognition technology, we believe voluntarily-installed systems can be very helpful in increasing belt use. The voluntary installation of belt reminder systems is not contrary to existing law, unduly complicated or expensive, or likely to result in a public backlash that would lead Congress to prohibit the use of such systems.

We do not believe the statutory prohibition against NHTSA mandating belt reminder systems should serve as a deterrent to manufacturers voluntarily installing vehicle-based incentives to improve seat belt use. In fact, NHTSAs Administrator,Dr. Jeffrey Runge, has sent letters to vehicle manufacturers encouraging them to enhance their vehicle-based systems. Based on the number responses from the vehicle manufacturers to Dr. Runges initial inquiries, we are gratified to report that many manufacturers appear to be moving in the direction of voluntarily-installed systems. See NHTSA Docket No. 13226 at http:\\dms.dot.gov. Further, we have facilitated the voluntary installation of such systems through a series of legal interpretations that would allow manufacturers to install both enhanced warning systems and vehicle interlocks. See letters to Mr. Robert C. Lange, February 28, 2003; Name withheld, September 13, 2002; and Mr. Bob Snyder, May 25, 2001 (enclosed).

We believe that by encouraging the voluntary installation of belt minder systems consistent with statutory provisions, we can improve safety belt use rates while avoiding the opposition to these systems experienced in the 1970s.

I hope this information is helpful. If you have any further questions, please contact Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:208
8/13/04

ID: 8546ar

Mr. Dale Moore, CIC
Hagan Hamilton Insurance
and Financial Services
448 South Baker
Post Office Box 847
McMinnville, OR 97128

Dear Mr. Moore:

This responds to your letter addressed to Walter Myers of this office in which you asked whether 15-passenger vans used by Linfield College to transport high school-age students to the college must comply with the Federal motor vehicle safety standards applicable to school buses. You explained in your letter and its enclosure that Linfield College sponsors an "Upward Bound" program, in which selected high school-age students from disadvantaged families are transported to the college campus for academic tutoring and other activities, including field trips, counseling, etc. You have been advised that the college's 15-passenger vans "may have to meet federal requirements in order to be leased or purchased from an automobile dealer."

Let me begin by stating that the National Highway Traffic Safety Administration's (NHTSA's) requirements for new school buses regulate the manufacture and sale or lease of new vehicles used for transporting students. The Federal requirements do not, however, regulate what bus may be used for particular student transportation purposes. The requirements that apply to the use of school vehicles are set by the State. Thus, if there are regulations about what buses an Oregon college must use to transport Oregon high school students, such regulations are administered by the State of Oregon, not the Federal government.

Some background information on our requirements might be helpful to your inquiry. The National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381 to 1431, as amended (Safety Act) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to the manufacture and sale of new motor vehicles, including school buses. The Safety Act defines a school bus as "a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which . . . is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools."

It is a violation of the Safety Act for any person to sell or lease any new motor vehicle as a school bus that does not comply with all Federal school bus safety standards. It is not a violation of Federal law, however, to sell any noncomplying used vehicle as a school bus, even if the seller knows the vehicle will be significantly used as a school bus. Similarly, it is not a violation of Federal law to use a noncomplying vehicle to transport school children. As noted above, that is because individual states, not the Federal government, regulate the use of motor vehicles.

In the situation described in your letter, several issues must be addressed to determine whether the vans are subject to our school bus safety standards. The first issue is whether the vans are "buses." Since the vans are designed to carry more than 10 persons, the answer to that question is yes. The second issue is whether Upward Bound activities are considered "school related events." Although Oregon may have a specific definition of "school related event" for the purpose of determining whether Linfield College must use certified school buses, with regard to Federal law, we conclude the answer is yes. That is, if a new bus were sold or leased to the college, we would consider the new vehicle as being sold or leased for a school related event. The goal of Upward Bound is to prepare the participating students for post-secondary education. That is also, of course, one of the goals of the secondary schools in the program. Your enclosure states that Upward Bound staff "visit each high school on a weekly basis doing counseling and follow-up work with each student." These regular ongoing visits could not happen without the cooperation of the secondary schools in the program. Accordingly, it appears to us that the Upward Bound program is an "event related to" the secondary schools concerned, within the meaning of the Safety Act.

The final issue is whether transporting Upward Bound students constitutes a significant use for the vans. Linfield College need not purchase certified new school buses for its general purpose vehicles, even though such vehicles may be used occasionally to transport Upward Bound students. On the other hand, if Linfield College purchases or leases the vans knowing that they will be significantly used to transport Upward Bound students, the seller who knows of such anticipated use must sell only properly certified school buses.

For information regarding state requirements on the use of school buses, you may contact Mr. Donald Forbes, 135 Transportation Building, Salem, OR 97310, telephone (503) 378- 6388.

I hope this information is helpful to you.

Sincerely,

John Womack Acting Chief Counsel

ref:#571#VSA d:8/2/93

ID: 24477a.drn

Rod Nash, V.P. Engineering
Collins Industries, Inc.
15 Compound Drive
Hutchinson, KS 67502-4349

Dear Mr. Nash:

This responds to your May 30, 2002, letter asking about an April 19, 2002, final rule that amended Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release (67 FR 19343). The rule restricted where wheelchair securement anchorages may be installed, to ensure that they do not block access to emergency exit doors. You ask whether the rules restrictions limit or supercede requirements in S5.4.2 of the standard, which requires unobstructed passage of a parallelpiped through the emergency exit door. The answer is no.

Your first question concerned the meaning of S5.4.3.1, which states:

S5.4.3.1 Except as provided in paragraph S5.4.3.2 [for tracks and track-type devices running on the school bus floor] of this section, no portion of a wheelchair securement anchorage shall be located in a school bus such that:

(a) In the case of side emergency exit doors, any portion of the wheelchair securement anchorage is within the space bounded by the interior side wall and emergency exit door opening, transverse vertical planes 305 mm (12 inches) forward and rearward of the center of any side emergency exit door restricted area, and a longitudinal vertical plane through the longitudinal centerline of the school bus, as shown in Figure 6A and Figure 6B.

(b) In the case of rear emergency exit doors in school buses with a gross vehicle weight rating greater than 4,536 kg (10,000 lb), any portion of the wheelchair securement anchorage is within the space bounded by longitudinal vertical planes tangent to the left and right sides of the door opening, a transverse vertical plane 305 mm (12 inches) forward of the bottom edge of the door opening, and a horizontal plane 1,145 mm (45 inches) above the floor of the bus, as shown in Figure 6C and Figure 6D.

(c) In the case of rear emergency exit doors in school buses with a gross vehicle weight rating of 4,536 kg (10,000 lb) or less, any portion of the wheelchair securement anchorage is within the space bounded by longitudinal vertical planes tangent to the left and right sides of the door opening, a transverse vertical plane 150 mm (6 inches) forward of the bottom edge of the door opening, and a horizontal plane 1,145 mm (45 inches) above the floor of the bus, as shown in Figure 6C and Figure 6D.

You ask whether S5.4.3.1 means that "the exit space in front of the rear emergency exit door of a school bus is now determined by the width of that door." The answer is no. The requirements of S5.4.3.1 are separate from the requirements in S5.4.2 for minimum exit aisle space to the rear emergency exit door. The latter requirement was established in a 1976 final rule (41 FR 3871, January 27, 1976). Today, the requirement is specified at S5.4.2.1, for school buses with a gross vehicle weight rating (GVWR) of more than 10,000 pounds. S5.4.2.1 requires that an opening large enough to permit unobstructed passage of a rectangular parallelepiped 1145 mm x 610 mm x 305 mm (45 inches x 24 inches x 12 inches) to the rear emergency exit door be provided, keeping the parallelepiped upright and the lower surface in contact with the floor of the bus at all times. S5.4.2.2 specifies the same requirements for school buses with a GVWR of 10,000 pounds or less, except that the parallelepiped is 1145 mm x 550 mm x 150 mm (45 inches x 22 inches x 6 inches). S5.4.2 remains in effect today, and still requires exits on large and small school buses to be, basically, 24 and 22 inches wide, respectively, and to provide adequate emergency aisle space.^[1]

The new requirements in S5.4.3.1 set forth dimensions in which wheelchair securement anchorages may not be installed. This prohibition is intended to minimize the chances that a wheelchair would be installed in a school bus in service at a position where the emergency exit would be blocked or obstructed by the wheelchair. This complements the minimum dimensional requirements for exits.

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

Sincerely,

Jacqueline Glassman

Chief Counsel

Enclosures

ref:217

d./8/2/02

^[1] Parallelepipeds were also proposed for S5.4.3 but were not included in the final rule. The final rule stated: "NHTSA has determined that defining the space by using planes better meets NHTSAs intention in restricting spaces where the wheel chair securement may not be placed [than specifying a parallelepiped], as the space defined by planes would explicitly include the floor near the school bus rear emergency exit door." (See 67 FR at 19346.)

ID: 2511y

Mr. C. Coleman Bird
Pepper, Hamilton & Scheetz
1300 Nineteenth St., N.W.
Washington, D.C. 20036

Dear Mr. Bird:

This responds to your request for an interpretation by this office as to whether a portable back massage device capable of being used in an automobile and powered by the vehicle's electrical system constitutes a piece of motor vehicle equipment as that term is used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act). I regret the delay in responding to your inquiry.

The product you described in your letter consists of an inflatable cushion that conforms to the user's back and contains two electric massage units capable of massaging the upper and lower portions of the user's back. The device can also provide heat. It is designed for use either indoors or in a vehicle by means of an adapter which plugs into the cigarette lighter. When the device is used in a vehicle, it is simply placed on the seat, and does not require any additional installation, other than connection to a power supply. You have asked three questions about this device, which I have discussed below.

Your first question was whether this device would be considered an item of "motor vehicle equipment" within the meaning of the National Traffic and Motor Vehicle Safety Act? Section 102(4) of the Act (15 U.S.C. 1391(4)) defines, in part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle..... (Emphasis added.) Since the portable back massage device is not original equipment or sold for replacment or improvement of any original equipment, it would be included within this definition only if it were an "accessory." In determining whether an item of equipment is considered an "accessory," the agency considers the following two criteria:

First, when a substantial portion of the expected uses of a product are related to the operation or maintenance of motor vehicles, the product should be considered an item of motor vehicle equipment within the meaning of the Safety Act. Second, if the product is intended to be used principally by ordinary users of such motor vehicles, we would consider it to be an accessory.

Based on the limited information you have provided, I am unable to reach a conclusion as to whether the back massage device would be considered an item of motor vehicle equipment. However, I will explain the considerations the agency focuses upon when applying the above critieria to specific products.

We would determine the expected uses of a product by considering the product advertising, product labeling, and the type of store which retails the product, as well as any available information about the actual use of the product. We anticipate that products found to satisfy the first criterion will ordinarily, although not necessarily, be ones that are carried in a vehicle. For example, if the device is portrayed in advertising as being in used in motor vehicles, includes as a standard feature a 12 volt adapter enabling its use in a vehicle, and is sold through retail outlets specializing in automotive equipment and accesories, it would be more likely to be considered an item of motor vehicle equipment than a product which did not have these characteris- tics. In evaluating the second criteria, the agency looks at whether the product is intended primarily for the use of consumers, rather than by professionals such as automotive repair and service personnel.

Your second question concerned whether the back massager would be subject to the Federal Motor Vehicle Safety Standards (FMVSS). If the device is not determined to be an item of motor vehicle equipment, it is beyond the scope of the agency's authority to regulate it. Even if it is determined to be motor vehicle equipment, and therefore subject to other provisions of the Safety Act, there is no Standard applicable to this type of device.

With regard to your final question, we do not generally provide advice about the authority of other Federal agencies. However, if it is not considered motor vehicle equipment under the Safety Act, the Consumer Product Safety Commission may have requirements governing such a device. It is also possible the Food and Drug Administration might consider it to be a medical device subject to that agency's regulation. In addition, some States may choose to regulate such devices. I am enclosing an information sheet which describes the Federal Motor Vehicle Safety Standards program, and how to get copies of the standards and any other NHTSA regulation. If you have further questions, please contact this office.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

ref:VSA

d:6/5/90

ID: 2851o

The Honorable Don Montgomery
Senator, Twenty-First District
1218 Main
Sabetha, Kansas 66534-1835

Dear Mr. Montgomery:

Senator Kassebaum has asked me to respond to your February 12, 1988 letter to her. In your letter, you expressed concerns about a problem that has arisen in connection with using "van type buses designed to carry 10 or less passengers, without meeting all the requirements of a school bus." You state that there is a problem with using these vehicles to transport students because "federal law classifies the vans by weight and calls them twelve passenger vehicles, which calls for the van to meet all school bus regulations." As a solution, you suggest a change in Federal law might be appropriate to exempt the vehicles you describe "from the weight classification in determining how many passengers they would be capable of carrying."

As I understand your letter, there appears to be a misunderstanding about how Federal law operates with respect to school buses. There may also be a misunderstanding about whether it is a Federal or state definition that determines which vehicles may be used to transport school children in Kansas.

Under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified as either a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle designed to carry a driver and 9 or fewer passengers, and either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers.

Given these definitions, a van with 9 or fewer designated seating positions for passengers cannot, regardless of its weight or gross vehicle weight rating (GVWR), be a bus within the meaning of Federal law and regulation. (GVWR is the manufacturer's determination of a vehicle's loaded weight, i.e., the weight of the vehicle plus its designed capacity to carry people and cargo.) On the other hand, if a van is manufactured with 12 or 15 designated seating positions as you stated, then the vehicle is a bus. The number of passengers that such a van may actually carry on any given trip does not affect its classification as a bus.

If that vehicle is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act and regulations issued thereunder define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events.

Gross vehicle weight rating (GVWR) is used in some safety standards to differentiate between smaller and larger school buses in the application of those standards. For example, Safety Standard No. 222, School bus passenger seating and crash protection, specifies one set of requirements for school buses with a GVWR of 10,000 pounds or less and another for those with a GVWR of greater than 10,000 pounds.

NHTSA's definition of school bus is used by the agency in regulating the manufacture and sale of new vehicles. New vehicles which are classified as school buses must meet the FMVSSs for school buses. A school bus manufacturer must certify that its vehicles meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. Thus, a dealer who has a 12 or 15 passenger van that has not been certified as complying with the Federal school bus safety standards and sells that vehicle to a school district has, in all likelihood, violated the statutory prohibition against the sale of a noncomplying vehicle. (Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards applicable to school buses and other vehicles.)

However, this agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. A State may do so by adopting appropriate vehicle definitions and requirements. To determine whether a local Kansas school district may purchase or use a noncomplying vehicle as a school bus, you must look to the laws of the State of Kansas, not the Federal laws and regulations.

On the other hand, I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and encourage you to give this your most careful consideration.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

cc: The Honorable Nancy Landon Kassebaum United States Senator Washington, DC 20515

ref:VSA#102#571 d:4/15/88

ID: nht93-5.42

TYPE: Interpretation-NHTSA

DATE: August 2, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Dale Moore -- CIC, Hagan Hamilton Insurance and Financial Services

TITLE: None

ATTACHMT: Attached to letter dated 4/6/93 from Dale Moore to Walter Myers (OCC 8546)

TEXT:

This responds to your letter addressed to Walter Myers of this office in which you asked whether 15-passenger vans used by Linfield College to transport high school-age students to the college must comply with the Federal motor vehicle safety standards applicable to school buses. You explained in your letter and its enclosure that Linfield College sponsors an "Upward Bound" program, in which selected high school-age students from disadvantaged families are transported to the college campus for academic tutoring and other activities, including field trips, counseling, etc. You have been advised that the college's 15-passenger vans "may have to meet federal requirements in order to be leased or purchased from an automobile dealer."

Let me begin by stating that the National Highway Traffic Safety Administration's (NHTSA's) requirements for new school buses regulate the manufacture and sale or lease of new vehicles used for transporting students. The Federal requirements do NOT, however, regulate what bus may be used for particular student transportation purposes. The requirements that apply to the use of school vehicles are set by the State. Thus, if there are regulations about what buses an Oregon college must use to transport Oregon high school students, such regulations are administered by the State of Oregon, not the Federal government.

Some background information on our requirements might be helpful to your inquiry. The National Traffic and Motor Vehicle Safety Act, 15 U.S.C. S1381 to 1431, as amended (Safety Act) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to the manufacture and sale of new motor vehicles, including school buses. The Safety Act defines a school bus as "a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which . . . is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools."

It is a violation of the Safety Act for any person to sell or lease any new motor vehicle as a school bus that does not comply with all Federal school bus safety standards. It is not a violation of Federal law, however, to sell any noncomplying USED vehicle as a school bus, even if the seller knows the vehicle will be significantly used as a school bus. Similarly, it is not a violation of Federal law to USE a noncomplying vehicle to transport school children. As noted above, that is because individual states, not the Federal government, regulate the use of motor vehicles.

In the situation described in your letter, several issues must be addressed to determine whether the vans are subject to our school bus safety standards. The first issue is whether the vans are "buses." Since the vans are designed to carry more than 10 persons, the answer to that question is yes. The second issue is whether Upward Bound activities are considered "school related

events." Although Oregon may have a specific definition of "school related event" for the purpose of determining whether Linfield College must USE certified school buses, with regard to Federal law, we conclude the answer is yes. That is, if a new bus were sold or leased to the college, we would consider the new vehicle as being sold or leased for a school related event. The goal of Upward Bound is to prepare the participating students for post-secondary education. That is also, of course, one of the goals of the secondary schools in the program. Your enclosure states that Upward Bound staff "visit each high school on a weekly basis doing counseling and follow-up work with each student." These regular ongoing visits could not happen without the cooperation of the secondary schools in the program. Accordingly, it appears to us that the Upward Bound program is an "event related to" the secondary schools concerned, within the meaning of the Safety Act.

The final issue is whether transporting Upward Bound students constitutes a significant use for the vans. Linfield College need not purchase certified new school buses for its general purpose vehicles, even though such vehicles may be used occasionally to transport Upward Bound students. On the other hand, if Linfield College purchases or leases the vans knowing that they will be significantly used to transport upward Bound students, the seller who knows of such anticipated use must sell only properly certified school buses.

For information regarding state requirements on the use of school buses, you may contact Mr. Donald Forbes, 135 Transportation Building, Salem, OR 97310, telephone (503) 378-6388.

I hope this information is helpful to you.