ID: 005738rbm

Mr. Paul Schockmel
Marketing Manager
International Electronics and Engineering S.A.
Zone Industrielle Findel
2b, route de Treves
L-2632 Luxembourg

Dear Mr. Schmockmel:

This responds to your letter requesting an interpretation of the advanced air bag requirements of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule in the Federal Register (65 FR 30680) requiring advanced air bags in all passenger cars, multipurpose passenger vehicles, light trucks and buses with a gross vehicle weight rating (GVWR) of 8,500 lb or less. The phase-in for these new requirements begins September 1, 2003. That final rule established new, advanced air bag performance requirements to minimize the risk of injury to children, as well as new requirements to enhance protection of small and mid-size adults. The requirements in S19, S21, and S23 are designed to minimize the risk that air bags pose to infants and small children. S19 provides manufacturers with two different options for complying with the standard (low risk deployment or automatic suppression), while S21 and S23 provide three options (low risk deployment, automatic suppression, or dynamic automatic suppression). Your questions are related to the interplay between the infant low risk deployment option and the infant automatic suppression option, particularly in light of the absence of a dynamic automatic suppression option for infants. I am pleased to provide a response.

You first request an interpretation of the requirement set forth in S19, and the test procedure provided in S20.4, relating to the low risk deployment option for infants. Specifically, you ask whether a system that is certified to the low risk deployment option for infants can suppress the air bag when the applicable child restraint is in the rear-facing mode, and either suppress or deploy when the restraint is placed in the forward-facing mode. The answer to the first part of this question is no. Under the low risk deployment option, one or more stages of the air bag must deploy when the restraint is rear-facing. The answer to the second part of your question is yes. If a system is certified to the low risk deployment option for infants, we will deploy the air bag as specified in S20.4. Thus, injury measurements are only recorded when the child restraint is in the rear-facing mode.

The requirements for the infant low risk deployment option are found at S19.3, which states that "each vehicle shall meet the injury criteria specified in S19.4 of this standard when the passenger air bag is deployed in accordance with the procedures specified in S20.4." The low risk deployment option is designed to address injuries that can result when an infant is very close to the air bag.

S20.4 specifies several conditions for testing the deploying air bag. First, the manufacturer must assure compliance to S19.3 using any child restraint listed in subparts B and C of Appendix A to the standard. For purposes of S19.3, the air bag is only tested with the child restraints in their rear-facing condition. Under the specified test conditions, the vehicle seat is moved as far forward as possible, while avoiding contact with the vehicle interior. This is done to ensure that the dummy's head is placed as close to the deploying air bag as possible. The air bag is only tested with the child restraint in a belted condition.

The air bag is deployed at whatever level of force and combination of stages that would deploy in any rigid barrier crash up to 64 km/h (40 mph) when a test dummy is positioned in a restraint as specified in the test procedure, except that the vehicle seat may be at any seat track position. This level is determined by running an indicant test, as described in S20.4.9, at impact speeds up to 40 mph with a dummy-occupied restraint installed in the passenger seat.

When NHTSA runs a compliance test on a vehicle certified to S19.3, it will only deploy the air bag at the level and, if equipped with a multi-stage inflator, with the combination of stages, that would deploy in the specified indicant test. Manufacturers may not use suppression technology to ensure that there will be no air bag deployment in the indicant test if they are certifying to the low risk deployment option.

Your second question relates to the absence of a dynamic automatic suppression option in S19. Specifically, you ask whether a manufacturer may use a system whereby the air bag is suppressed in all but the forward-facing mode, where a benign deployment strategy would be used. This option is not currently allowed under S19. This is because such a system would not meet either the low risk deployment option or the automatic suppression option. Should the agency add a third, dynamic suppression option to S19, such a compliance strategy would be allowed as long as all the criteria of that option were met in full.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.10/7/03

ID: 04-004579drn

Stephen E. Selander, Esq.
Senior Counsel
Warner Norcross & Judd LLP
2000 Town Center, Suite 2700
Southfield, MI 48075-1318

Dear Mr. Selander:

This responds to your request for an interpretation whether your clients (Morbarks) products, portable brush chippers, are "motor vehicles" for purposes of the National Traffic and Motor Vehicle Safety Act, including the TREAD Act. We will identify the relevant factors that should be considered in making such determinations.

Title 49 U.S.C. Chapter 301 authorizes the National Highway Traffic Safety Administration (NHTSA) to prescribe Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) defines "motor vehicle" as:

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

We have issued a number of interpretations of this language. We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of highway travel. Finally, we have concluded that items of mobile construction equipment that use the highways only to move between job sites and that typically spend extended periods of time at a single site are not motor vehicles. However, we do consider vehicles that use the public roads on a necessary and recurring basis to be motor vehicles.

You provided information about several models of brush chippers. You write that:"Eight of the models have axles, tires and wheels, and can be easily moved around a site or from site-to-site by towing."

You stated that Morbark believes that its portable brush chippers are not covered by the Vehicle Safety Act or the TREAD Act. You stated that Morbark brush chippers are designed primarily for use off-highway in helping to clear sites of trees and brush by chipping the brush, tree limbs, and small tree trunks.

You also stated that Morbark believes that its portable brush chippers are not trailers as defined in 49 CFR 571.3. That regulation defines trailer as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

We have reviewed the videotape you enclosed with your letter. We note that in some instances, the Morbark brush chipper and vehicle towing the chipper were depicted as parked on the side of the road in what appears to be a residential area. We also understand from the information you provided that some of these products are used by tree service and landscape companies. We have also reviewed information provided at Morbarks web site: www.morbark.com.

Whether Morbarks portable brush chippers are considered motor vehicles under the National Traffic and Motor Vehicle Safety Act depends on their use, i.e., whether they typically spend extended periods of time at a single site or, by contrast, use the public roads on a necessary and recurring basis. By way of example, in a letter to DuraTech dated June 4, 1997, we took the position that mobile tub grinders are not motor vehicles because they stay on job sites for extended periods of time (usually for months and very rarely for less than a week). Similarly, we have concluded that mobile waterjet cutting and cleaning equipment was not a motor vehicle, based on the fact that it appeared to stay on job sites for extended periods of time ranging from a week to over a year.

We do not have information concerning the specific usage patterns of each of Morbarks brush chippers to determine whether they are motor vehicles. Moreover, while we seek to be helpful in providing opinions about our statutes, we do not have the resources to provide a detailed review of the products of each company. However, if the brush chippers use the public roads on a necessary and recurring basis, they would be motor vehicles. We would think that would likely be the case for at least some of Morbarks portable brush chippers, since tree service and landscape companies would tow the portable brush chippers by trucks to jobs, park them along the curb during work, and then tow them to the next job or, at the end of the day, return them to the companys facilities. Tree service company crews commonly complete one to two jobs per day. We also note that, in a letter to Lindig Manufacturing Corporation dated January 5, 1984, we took the position that brush chipper trailers are motor vehicles.

As to your question concerning the definition of trailer, we would consider the brush chipper itself to be the property being transported.

I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:VSA102(4)
d.8/27/04

ID: nht87-1.39

TYPE: INTERPRETATION-NHTSA

DATE: 02/24/87

FROM: Erika Z. Jones; NHTSA

TO: Hal McNamara

ATTACHMT: LETTER DATED 09/29/87 FROM ERIKA Z. JONES TO PETER MCINTOSH; LETTER DATED 01/01/87 (EST) FROM PETER MCINTOSH TO TAYLOR VINSON (OCC 797)

TEXT:

Mr. Hal McNamara McNamara Pontiac Inc. P.O. Box 3269 Orlando, FL 32802

Dear Mr. McNamara:

This is in reply to your letter of September 29, 1986, to Mr. Vinson of this office asking for an interpretation of Motor Vehicle Safety Standard NO. 108. You have enclosed a copy of a flyer for "Ad-A-Lens:" the device appears to be an overlay with a dea ler's name, intended to be placed over the lens of the center highmounted stop lamp. You have told us that "the company selling this product says there is no problem legally or safety-wise....." You have also furnished us with a portion of a preamble to the standard discussing the visibility requirements for the lamp in which the statement is made that beyond the specified test points "no requirements are established other than that the signal be 'visible,' which means any portion of the signal, without regard to lens area or candela."

Standard No. 108 does not prohibit adding an overlay to the center highmounted stop lamp that contains a dealer's name. However, the addition of the overlay must not create a noncompliance with Standard No. 108, in violation of the National Traffic and M otor Vehicle Safety Act.

Paragraph S4.1.1.41(a) requires each center highmounted stop lamp to have an effective projected luminous area not less than 4 1/2 square inches. Application of dealer identification to an original equipment lamp not designed for the overlay could well r educe the luminous area below the minimum required by the standard. Further, there is the possibility that the overlay could affect photometric compliance as well. The lamp must meet the photometric requirements at the 13 test points specified in Standar d No. 108 up to the maximum specified 10 degrees right and left. Beyond 10 degrees, up to 45 degrees right and left, the overlay must not obscure the signal so that no portion of it is visible.

Should the overlay create a noncompliance with Standard No. 108, any person offering for sale or selling a vehicle with it would be in violation of the National Traffic and Motor Vehicle Safety Act, as would any dealer adding an overlay to the lamp of a vehicle after it is sold. The Act provides that a penalty of up to $1000 per violation may be imposed, up to a maximum of $800,000 for any related series of violations. You should also seek the advice of State motor vehicle authorities on this matter.

We are providing a copy of this interpretation to Ad-A-Lens, and appreciate your bringing this matter to our attention.

Sincerely,

Erika Z. Jones Chief Counsel

cc: Ad-A-Lens

Mr. Tayor Vinson Legal Council NHTSA-FMVSS - 108 Department of Transportation 400 7th St. S.W. Washington, DC 20590

Dear Mr. Vinson,

Would you please give us your opinion of a new car dealer using "Ad-A-Lens" to add dealership identification using the high mounted stop lamp on a new vehicle. The company selling this product says there is no problem legally or safety-wise, but we would appreciate your opinion on any modification or addition to the stop lamp.

Sincerely,

Hal McNamara

HM/dp

MAKE A FAST BRAKE IN THE LIGHT DIRECTION WITH AD-A-LENS

INSERT GRAPHICS Have you reached the crossroads of exorbitant advertising costs that cut into your profits? AD-A-LENS helps you put the "Brakes" on high advertising costs while allowing you visual exposure to the buying public 24 hours a day, 365 days a year! Now you can have your dealerships name prominently displayed in lights for just pennies. AD-A-LENS has been uniquely designed to become an integral part of every car. Just imagine your dealerships name appearing in lights over 50,000* times a year from just one car you sold! 34AD-A-LENS is now offering dealerships a special one-time discount purchase price. Don't be left in the dark, call today for details: AD-A-LENS (305) 629-5777 1500 W. FAIRBANKS - WINTER PARK, FL 32789

20820 Federal Register

Paragraph S4.1.1.41(b) requires that the signal be "visible to the rear through a horizontal angle from 45 degrees to the left to 45 degrees to the right ***". Koito asked what the agency considered "visible". This appears especially important for the de sign of the shroud on interior mounted lamps. In the agency's opinion, the lamp must meet the test points specified in Figure 10 up to the maximum specified 10 degrees right and left. Beyond those points until 45 degrees right and left, no requirements a re established other than that the signal be "visible", which means any portion of the signal, without regard to lens area or candela.

ID: nht90-2.40

TYPE: INTERPRETATION-NHTSA

DATE: 05/05/90

FROM: STEPHEN P. WOOD -- NHTSA ACTING CHIEF COUNSEL

TO: C. COLEMAN BIRD -- PEPPER, HAMILTON & SCHEETZ

TITLE: NONE

ATTACHMT: LETTER DATED 03/14/89 FROM C. COLEMAN BIRD -- PEPPER HAMILTON AND SCHEETZ TO ERIKA JONES -- NHTSA ENTITLED REQUEST FOR INTERPRETATION REGARDING STATUS OF PORTABLE BACK MASSAGER UNDER NATIONAL TRAFFIC AND MOTOR VEHICLE SAFETY ACT OF 1966, AS AME NDED

TEXT: 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 t erm 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 conn ection 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 of 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 replacement 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 p roduct 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 a pplying the above criteria 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 pro ducts 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 v olt adapter enabling its use in a vehicle, and is sold through retail outlets specializing in automotive equipment and accessories, it would be more likely to be considered an item of motor vehicle equipment than a product which did not have these charac teristics. 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 t o 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 requirem ents 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.

ENCLOSURE

ID: 23658

Mr. Kenji Tanabe
Director & General Manager
Mitsubishi Motors R&D of America, Inc.
1560 Wilson Boulevard, Suite 1200
Arlington, VA 22209

Dear Mr. Tanabe:

This responds to your letter of October 1, 2001, in which you ask about the lower anchorage marking requirements in S9.5(a) of Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225).

By way of background, Standard No. 225 requires vehicles to have child restraint anchorage systems and specifies requirements for those systems to ensure their proper location and strength for the effective securing of child restraints. The required child restraint anchorage system consists of two lower bars and a tether anchorage (S3 of Standard No. 225). The standard contains "marking and conspicuity" requirements for the lower bars of a child restraint anchorage system to increase the likelihood that consumers will know that a child restraint anchorage system is present in their vehicle and that they will remember to use it. The standard requires manufacturers to mark the vehicle seat back with a small circle where the bars are located (S9.5(a)), or to design a child restraint anchorage system such that the bars are visible (S9.5(b)).

Your question relates to S9.5(a) of the standard, which reads:

(a) Above each bar installed pursuant to S4, the vehicle shall be permanently marked with a circle:

(1) That is not less than 13 millimeters (mm) in diameter;

(2) Whose color contrasts with its background; and

(3) That is located on each seat back such that its center is not less than 50 mm and not more than 75 mm above the bar, and in the vertical longitudinal plane that passes through the center of the bar. (Emphasis added.)

The issue you raise in your letter is where the "seat back" begins for the purpose of marking the lower anchorages pursuant to S9.5(a). The term "seat back" is not defined in Standard No. 225. You state that Mitsubishi installs a type of deeply contoured, rounded seat in some of its vehicle lines. On these seats, the bottom cushion curves toward the vertical and supports a portion of an occupant's lower back before a separate "seat back" begins. You state that if the agency considers a portion of a vehicle seat to be the seat back solely by reference to a physical separation between the bottom seat cushion and the seat back, the circle markings would be more than 75 mm above the anchorage bars, which is not permitted by S9.5(a)(3). ⁽¹⁾

You suggest that the term "seat back" could be defined by reference to the point at which the bottom seat cushion curves toward the vertical direction, where it begins to support the occupant's lumbar area and lower back. You state that this would enable Mitsubishi to locate the circle markings within 75 mm of the lower anchorage bars. You believe that defining "seat back" in this manner would be logical, since the curved portion of the bottom seat cushion forms part of the occupant back support.

We agree with your position. With most seat designs, the bottom seat cushion is essentially horizontal and is a separate piece from the essentially vertical seat back. However, with the seat design you described, the separation is at a point above where the seat cushion begins to curve upward. The point at which the separation occurs, assuming there is one, should not be determinative as to what portion of the seat is the seat back. (Some vehicle seat assemblies might not have any separation between the seating surface and the seat back.) For the purpose of the marking requirements of S9.5(a) of Standard No. 225, we interpret the term "seat back" as comprising the portion of the seat that supports the occupant's lumbar area and back, including the portion of the seat that begins to angle vertically above the horizontal seating surface.

We note that Mitsubishi had raised this issue of the meaning of "seat back" in its April 19, 1999, petition for reconsideration of the final rule establishing Standard No. 225, a response to which is pending. We may amend S9.5(a)(3) of the standard to clarify the term "seat back" as used therein in accordance with the interpretation made today.

Please contact us if you have further questions.

Sincerely,

John Womack
Acting Chief Counsel

ref:225
d.1/14/02





---

1. ¹You also state that the lower anchorages themselves would have to be located in a place that will result in the child restraint being installed at a very awkward and unstable angle. Standard No. 225 has requirements that prohibit the placement of the lower bars in locations that would result in awkward child restraint installation. S15.1.2.2 of the standard (incorporating certain requirements that manufacturers may meet until 2004, as an alternative to those set forth in S9) specifies that the bottom surface of the child restraint fixture used to locate the lower anchorage bar must have attitude angles within certain limits. The angles are measured relative to the vehicle's horizontal, longitudinal and transverse reference planes). (Pitch must be 15 10, roll 0 5, and yaw 0 10.) We will be incorporating the pitch, roll and yaw requirements into S9 of the standard.

ID: 24219missing_card_and_manual_at_retailer

Emilie Crown, RN, CEN
Program Manager
Montgomery County CPS Program
Department of Housing and Community Affairs
100 Maryland Avenue
Rockville, MD 20850





Dear Ms. Crown:

This responds to your March 7, 2002 letter, to my office, on behalf of a retailer, asking about Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213). You ask whether retailers may sell new child restraints that are not accompanied by printed instructions for the child restraint, or that do not have an owner registration card attached to them, as required by S5.6.1 and S5.8 of the standard, if the retailer were to take steps to have the printed instructions sent to the purchaser and to register the purchaser with the manufacturer. Our answer is that the sale of the child restraints that are missing the printed instructions would be prohibited. The sale of the child restraints that do not have the registration card attached to them would be permitted, but only if a card containing all the required information were handed to the purchaser or if the purchaser were registered by the retailer at the point of sale of the restraint.

You explain that retailers have told you that sometimes the instruction manual and/or owner registration card are "lost in the shuffle." The cards are frequently lost when child restraints are bought and later returned, as well as when the restraints are used as floor models. A retailer has told you that--

they can easily get additional instruction manuals from the manufacturer, but the registration cards are a different matter. Apparently some of the vendors provide them with blank registration cards that they can fill in the date of manufacture and model number on, and other times they tell them to just have the customer call in the registration.Would the retailers be able to use [generic NHTSA registration] cards?

Printed Instructions

Section 30112 of 49 U.S.C. Chapter 301 (the "Vehicle Safety Act") prohibits the sale of any item of motor vehicle equipment that does not comply with all applicable Federal motor vehicle safety standards (FMVSSs). Retailers are thus prohibited from selling new child restraints that do not meet Standard No. 213. The first of the two requirements you ask about is set forth in S5.6.1 of the standard. S5.6.1 states, in pertinent part: "Each add-on child restraint system shall be accompanied by printed installation instructions in English that provide a step-by-step procedure, including diagrams, for installing the system in motor vehicles, securing the system in the vehicles, positioning a child in the system, and adjusting the system to fit the child. . . .

Retailers are prohibited from selling new child restraints that do not have the instruction manual. A retailer cannot satisfy the requirement to sell a restraint with an instruction manual by having the purchaser "call the car seat manufacturer to send the buyer a new manual," nor by the retailer itself calling the manufacturer. Stated simply, the instruction manual must accompany the child restraint when the restraint is sold. We suggest that the retailer obtain any needed replacement manuals from the manufacturer prior to offering the restraint for sale.

Owner Registration Card

S5.8 of Standard No. 213 requires that each new child restraint be accompanied by an owner registration card. S5.8 states: "Each child restraint systemshall have a registration form attached to any surface of the restraint that contacts the dummy when the dummy is positioned in the system " The form must be pre-printed with the model name or number and date of manufacture of the child restraint, and with the manufacturer's name and mailing address. It must also be postage-paid.

We interpret S5.8 as permitting the sale of a child restraint system that lacks the original (manufacturer-provided) registration card, as long as the retailer provides--at the point-of-sale--a postage-paid replacement card that has all the information required by S5.8 (model name or number and date of manufacture of the restraint), or as long as the retailer itself registers the purchaser with the manufacturer. The purpose of the requirement that the registration form be attached to the child restraint is to increase the likelihood that the purchaser will notice the card. The purpose of the requirements to have the relevant information pre-printed on the card and to provide postage is to make the registration process as easy as possible, to increase registration rates. These purposes would be met by a retailer's providing the necessary information on the form and handing the form to the purchaser, or by registering the purchaser at the time of sale. The requirement for a card would not be met by the retailer simply informing the purchaser to telephone the manufacturer to register the restraint. Additionally, the requirements in S5.8 for pre-printed information would not be met by handing the purchaser a generic registration card that does not have the required information or postage.

I hope that this information is helpful. If you have any other questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.5/2/02

ID: 21211.drn

Mr. Ted Cashion
7 Lowell Street
Travelers Rest, SC 29690

Dear Mr. Cashion:

This responds to your request for an interpretation "regarding the use and safety standards applicable for 11-15 passenger vans." You write that your church is considering whether to purchase a passenger van for its congregation. You did not mention whether your church has a school or will be transporting children to or from school or related events. As explained below, these factors are important in determining the Federal requirements that apply to your purchase of a van (bus). Further, States regulate the use of vehicles, so South Carolina law should be consulted to see if there are regulations about how members of your congregation must be transported.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Section 30112 takes on special significance when an institutional customer will use the new vehicle to "significantly" provide transportation "to or from school or an event related to school" for school age children.

Persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. Persons selling or leasing new "buses" for such use must sell or lease a "school bus."

Our longstanding position is that the term "school" does not include church schools such as Sunday schools, or those providing other religious training. However, a regular preprimary, primary or secondary school operated under the auspices of a church would be a "school." New buses (e.g., 11- to 15-person vans) sold to carry students to or from the school must be certified as meeting our school bus standards. Further, even if your church does not operate a school, if your church were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Because our school bus regulations apply only to manufacturers and sellers of new motor vehicles, we do not prohibit institutions from using non-school buses to transport school children. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, South Carolina law should be consulted to see if there are regulations about how children or adult members of a church must be transported.

We believe that vehicles providing the safety of school buses should be used whenever transporting children in buses. This belief is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "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 (a copy of which is provided), 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.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that 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, using vehicles that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

In response to your request for information about safety standards applicable to "11-15 passenger vans," 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 non-school buses.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.4/6/2000

ID: 21508retaillabelneb

Mr. Harold Schapiro
1709 Sulgrave Avenue
Baltimore, Maryland 21209

Dear Mr. Schapiro:

This responds to your April 10, 2000, correspondence requesting an opinion as to your proposal to "add, at the retail level, a sticker to the wall of the tire that indicates the retailer (e.g. Sears, Wal-Mart, Mr. Tire, NTB, etc...)." You further state that the sticker would be "non-obtrusive" and ask this office to advise you if there is any regulation that would prohibit this action.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal Motor Vehicle Standards (FMVSS) applicable to new motor vehicles and new items of motor equipment. Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. For that reason, NHTSA neither tests, approves, disapproves, endorses, nor grants letters of approval of products prior to their introduction into the retail market. Rather, we enforce compliance with the standards by purchasing vehicles and equipment and testing them. We also investigate safety-related defects.

It is not clear from your letter whether you are interested in labeling replacement passenger car tires or replacement tires for use on other motor vehicles. To ensure that you receive the information that is of concern to you, I will discuss identification requirements for replacement tires for use on both passenger cars and on other motor vehicles.

All new passenger car tires must satisfy the requirements of Standard No. 109, New Pneumatic Tires (49 CFR 571.109), and be labeled in accordance with Part 574, Tire identification and recordkeeping (49 CFR Part 574). This is true whether the new passenger car tire is a mud and snow tire, all-season tire, high speed-rated tire, temporary spare tire, or a normal highway service tire. Section S4.3.2 of Standard No. 109 explicitly requires each tire to be labeled with the manufacturer's name or a brand name and the identification number assigned to the manufacturer. The "brand name" refers to the name under which a tire is sold at retail, whether it is identical to the manufacturer's name (e.g., Firestone), a name owned by the manufacturer and used in place of its corporate name (i.e., a house brand, such as Falls that is manufactured by Cooper), or a name owned by someone other than the manufacturer (i.e., a private brand such as Atlas that is made by several manufacturers). Section S4.3.2 uses the singular form to identify the name that must appear on the sidewall (name of manufacturer or the brand name) and connects the alternative with the disjunctive "or." This grammatical structure indicates that only one name, either that of the actual manufacturer or the brand name owner, shall be labeled on the tire. The agency chose this grammatical structure to ensure that consumers would not be confused about the identity of the brand name or manufacturer of the tire.

The marking requirements for tires subject to Standard No. 119, New pneumatic tires for vehicles other than passenger cars (49 CFR 571.119), are set forth in section S6.5 of the standard. Section S6.5(b) requires that each tire be marked with "the tire identification required by part 574 of this chapter." Section 574.5, Tire identification requirements, specifies that "[e]ach tire manufacturer shall conspicuously label on one sidewall of each tire it manufactures, except tires manufactured exclusively for mileage contract purchasers, or non-pneumatic tires of non-pneumatic tire assemblies, by permanently molding into or onto the sidewall, in the manner and location specified in Figure 1, a tire identification number (TIN) containing the information set forth in paragraphs (a) through (d) of this section." Both section S6.5(b) of Standard No. 119 and section 574.5 use the singular form to identify the identification number that must appear on the sidewall. This grammatical structure indicates that identification number, representative of a single manufacturer, shall be labeled on the tire. The agency chose this grammatical structure to ensure that consumers would not be confused about the identity of the manufacturer of the tire.

As discussed above, Standards Nos. 109 and 119 are intended to provide the tire purchaser with necessary information for the safe operation of those tires on the purchaser's vehicle. Although the situation described in your letter is not specifically addressed by the language of these standards, needless confusion could result from the attachment of a retailer's name to a tire which is, as required by our regulations, marked with a manufacturer's name, a brand name, or a manufacturer's TIN. NHTSA believes that this confusion would impair the purpose of tire information labels. Therefore, this agency interprets Standards Nos. 109 and 119 to prohibit the attachment of a retailer's name, through any means, to replacement tires for passenger cars and motor vehicles other than passenger cars.

For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:109#119
d.6/19/00

ID: 21594.drn

The Honorable John E. Baldacci
Member, United States House
of Representatives
445 Main Street
Presque Isle, ME 04769

Dear Congressman Baldacci:

Thank you for your letter to the National Highway Traffic Safety Administration (NHTSA), on behalf of your constituent, Mr. David W. Keaton of Frenchville. Mr. Keaton, Director of the St. John Valley Technology Center, needs transportation for high school students who are participating in work-study programs at locations off the school campus. The students are transported by school bus from their high schools to the Center. Mr. Keaton is concerned about being able to provide transportation for students to go from the Center to various work sites. Because Maine's school transportation funds are limited, Mr. Keaton seeks to provide transportation by vans carrying 11 or more persons (including the driver) rather than by school bus. Mr. Keaton therefore seeks your assistance in:

1. Allowing public school systems to operate any van without bus markings.
2. Encouraging, through financial assistance, states to enable local educational units to use vans when transporting small numbers of students.
3. Simplifying the school student transportation regulations to allow the transportation of school students in vans during the day.

At the outset, let me note that there is no federal regulation or statute that regulates how children must be transported. Requirements regulating how persons must be transported are determined by state law. However, NHTSA regulates which new buses dealers may sell or lease if the bus is used to regularly transport school children to or from school or school-related activities.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

It is my understanding that the high school students under Mr. Keaton's charge receive credits towards high school diplomas for participating in the work projects. Under these circumstances, we would consider the real-life work that students perform to be "school," and the transportation provided to the work site as school-related transportation. Therefore, when the students are being transported to the work sites in buses, we would recommend that they be provided school bus transportation.

Federal law also requires that any dealer that sells a new bus to the St. John Valley Technology Center that will significantly be used to take high school students to work sites, must sell a bus that meets NHTSA's school bus standards. Federal law supersedes any contrary state law that presumes to permit dealers to sell new non-school buses that will significantly be used to transport students to or from school or school-related activities. (See 49 U.S.C. 30103(b), Preemption.)

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, if Mr. Keaton wishes to change regulations or procedures for the use of Maine school vehicles, he must look to Maine state law. One person Mr. Keaton should consult is Maine's State Director of Pupil Transportation, Mr. Harvey Boatman, who can be reached at (207) 287-5321.

Mr. Keaton's first point is that public school systems should be permitted to operate any van without bus markings. Bus marking requirements are addressed by state law. Mr. Keaton's second point (encouraging, through financial assistance, states to enable local educational units to use vans when transporting small numbers of students) and third point (simplifying the school student transportation regulations to allow the transportation of school students in vans during the day) also ask for changes in state vehicle use requirements, and must therefore be reviewed by Maine state officials. However, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that 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, 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.

I hope this information is helpful. If you have any further questions, please contact Mr. John Womack, Senior Assistant Chief Counsel, at (202) 366-9511.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571.3#VSA
d.6/5/00

ID: nht93-7.36

DATE: October 22, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Richard A. Wennerberg -- Vice President, Marketing Services, American Gas Association

TITLE: None

ATTACHMT: Letter dated 8/19/93 from Richard A. Wennerberg to John Womack (OCC-9019)

TEXT:

This responds to your request for a letter explaining the status of Federal regulations applicable to compressed natural gas (CNG) containers for motor vehicles and CNG fueled motor vehicles. As you stated, representatives of the National Highway Traffic Safety Administration (NHTSA), an agency of the United States Department of Transportation, met with the American Gas Association (AGA) on August 16, 1993 to clarify your understanding of this agency's statutory authority with respect to the notice of proposed rulemaking for CNG fuel containers and vehicles using CNG as a fuel. (58 FR 5323, January 21, 1993) This letter, which you plan to forward to State officials interested in CNG fueled motor vehicles, summarizes this information.

By way of background information, NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. S1381 et seq.; Safety Act) to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. The Research and Special Programs Administration (RSPA), another agency of the U.S. Department of Transportation, is authorized by Congress to issue standards for containers, including CNG containers, used to transport hazardous materials. RSPA does not have the statutory authority to issue a standard for CNG containers that are used to fuel a motor vehicle. Therefore, if the Federal government were to issue a standard applicable to the manufacture of CNG containers designed to fuel a motor vehicle, NHTSA is the only Federal agency authorized to do so.

At present, NHTSA has not issued any standard applicable to CNG containers, CNG fueled vehicles or any regulation dealing with the conversion of vehicles to be equipped with such containers. Therefore, until such time as a standard is issued, a manufacturer is not required to comply with any NHTSA or Department of Transportation safety standard related to CNG fuel systems.

Nevertheless, manufacturers of CNG containers and vehicles are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufacturer of the container or vehicle determines 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.

In addition, NHTSA has certain restrictions on vehicle fuel system conversions, depending on who does the conversion and when the work is done.

I have enclosed a discussion that sets forth the implications under our present regulations of converting new and used gasoline-powered vehicles to use propane or other gas (such as CNG). That discussion addresses NHTSA's vehicle alterer requirements (49 CFR S567.7) which apply to work on new vehicles, and the Safety Act's "render inoperative" provision (S108(a)(2)(A)), which applies to work on new and used vehicles. Section 108(a)(2)(A) prohibits vehicle manufacturers, distributors, dealers and repair businesses from "knowingly rendering inoperative, in whole or in part, any device or element of design installed ... in compliance" with any FMVSS. If the agency were to ultimately decide to adopt the proposal, it would be necessary for NHTSA to revisit the "render inoperative" issues that relate to vehicle conversions. For example, if NHTSA were to issue a safety standard for CNG containers, all containers manufactured after the effective date of the standard would be required to comply with its requirements, whether they are placed on new vehicles or on new or used vehicles converted to CNG fuel.

In addition to these current regulatory provisions, as mentioned above, NHTSA issued a proposed rule for CNG containers and vehicles using CNG as a fuel. As we explained at the August 16, 1993 meeting, the agency is currently reviewing the comments to the proposal for CNG containers and vehicles using CNG as a fuel. We expect our next regulatory decision in early 1994. As we explained, the January 1993 notice was a proposal and does not necessarily reflect the precise requirements that will be contained in the final rule, assuming that a rule is issued.

If a Standard is issued, each manufacturer would be responsible for certifying that its products meet with the requirements of that standard. This is so because the "Safety Act" establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. NHTSA does not, however, approve or certify any vehicles or items of equipment. NHTSA also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

You should also be aware that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For information about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.