ID: 2889o

Mr. R. C. Rost
President
Minnesota Body & Equipment Co.
7380 Highway 101
Shakopee, MN 55379-3097

Dear Mr. Rost:

This is in reply to your letter of March 18, 1988, bringing our attention to a conflict between a Federal motor vehicle safety standard applicable to school bus lighting, and State requirements applicable to these vehicles.

You have informed us that at least two States, Iowa and Wisconsin, prohibit Head Start buses in effect from being identified as a school bus, either by words or by color, and from having the warning lamp system required by Standard No. l08. Paragraph S4.1.4 of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment requires each school bus to be equipped with a four or eight lamp signal system, in addition to other required lighting equipment. You also indicate that some regional Headstart authorities reportedly do not recognize the interpretations and regulations of this agency regarding school bus safety. You have asked that Head Start buses be exempted from the warning law requirement if a color other than school bus yellow is used.

In 1974, Congress amended the National Traffic and Motor Vehicle Safety Act to require the issuance of certain Federal motor vehicle safety standards for school buses. The amendments defined "school bus" as:

a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines 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." (15 U.S.C. 1391(14)) (Emphasis added.)

On December 29, 1977, the then Chief Counsel of this agency issued an opinion under 15 U.S.C. 1391(14) that Head Start facilities are considered preprimary schools and that buses transporting children to and from those schools are defined as school buses under Federal law and accordingly are subject to the Federal school bus safety standards. Specifically, the letter stated: The NHTSA interprets the term "school" broadly, because the agency believes that this is the intent of the Motor Vehicle and School Bus Safety Amendments of 1974 (Pub. L. 93-492) which directed the creation of the school bus safety standards. Since this head start program is basically an educational program for preprimary students, the agency had determined that those facilities are schools and buses transporting children to and from them must comply with the Federal school bus safety requirements if they transport 10 or more passengers.

I am sorry to inform you that we cannot grant your request for an exemption. The 1977 opinion of this agency regarding Congress' 1974 mandate remains operative. The Federal motor vehicle safety standards applicable to buses defined under Federal law as school buses continue to apply in all respects to buses used to carry preprimary school pupils such as those in the Head Start program. Any manufacturer who omits the warning lamp system required by paragraph S4.1.4 of Standard No. 108, or who delivers a bus with the warning lamp system inoperative, is in violation of the National Traffic and Motor Vehicle Safety Act, and subject to civil penalties. The manufacturer is also subject to the provisions of the Act for notification and remedy of the noncompliance with Standard No. l08.

The effect of the preemption provision in section 103(d) of the Act (15U.S.C. 1392(d)) is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that State standard or requirement is identical to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light requirement as a "higher standard of performance." Thus, regardless of how a State defines "school bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with a school bus warning system that is designed and wired as required by paragraph S4.l.4 of Standard No. l08. Although each State has the authority to establish laws for the use of vehicles on its roads, those State laws may not override Federal laws. The effect of Federal preemption is that the school bus warning system must continue to operate as required by paragraph S4.l.4(b)(ii), and a State may not directly or indirectly require tampering with that equipment in order to comply with State usage laws.

We are providing copies of this letter to the officials in Iowa and Wisconsin mentioned in your letter.

Sincerely,

Erika Z. Jones Chief Counsel

cc: J.P. Golvinaux Dwight R. Carlson Frank Potts Donald Schneider

ref:l08 d:8/26/88

ID: nht95-1.76

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

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

TO: Nick Smith -- Member, United States House of Representatives

TITLE: None

ATTACHMT: ATTACHED TO 1/17/95 LETTER FROM NICK SMITH TO REGINA SULLIVEN

TEXT: Thank you for your letter regarding the inquiry from your constituent, Dave Globig of Spring Arbor College, concerning Federal requirements for the transportation of school children. I appreciate this opportunity to clarify our regulations on this subje ct.

Mr. Globig's understanding is that Federal law "will not allow certification of any vans made after 1995 and, after 1997, will not allow any vans to be certified." You stated that Mr. Globig was concerned about purchasing expensive vehicles and finding o ut later that "they cannot be certified."

By way of background information, 49 U.S.C. section 30101 et seq. authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles, including school buses. Under that a uthority, NHTSA issued a comprehensive set of school bus safety standards that ensures that school buses are one of the safest forms of transportation. These standards require school buses to have safety features that include emergency exits, strengthen ed body panel joints, protective seating and special lamps and mirrors. Our regulations require manufacturers to self-certify the compliance of their vehicles. Our regulations also require each person selling a new school bus to sell only buses that ha ve been certified by the manufacturer as meeting these school bus safety standards.

Under our regulations, a motor vehicle, including a van, designed to carry 11 or more persons (including the driver) is classified as a "bus." A "school bus" is defined as a bus that is sold "for purposes that include carrying students to and from school or related events." The term "school" refers to preprimary, primary, and secondary school.

With regard to Mr. Globig's belief that after 1995, Federal law will not allow any vans to be certified, there is no such prohibition going in effect. NHTSA has no requirement that would prevent a manufacturer from certifying its van as meeting all appl icable FMVSSs, including the school bus standards, if the vehicle in fact complied with those standards.

There are two issues we would like to bring to Mr. Globig's attention. The first issue relates to which requirements apply to the use of school vehicles. The responsibility for complying with our school bus requirements rests with the manufacturer and s eller of a new bus. The school purchaser, on the other hand, has no obligation under our regulations to purchase and use a complying school bus, or any other type of vehicle. Since Federal law applies only to the manufacture and sale of a new vehicle, under our regulations, a school may use any vehicle it chooses to transport its students. NHTSA does not have the authority to prevent a school from using any of its vehicles.

Once a new vehicle has been sold, the use of that vehicle becomes subject to state law. Thus, Mr. Globig should contact state officials for information about any requirements Michigan might have concerning the use of vans as school vehicles. NHTSA stro ngly recommends that school children only be carried in vehicles meeting Federal school bus safety standards. We have enclosed for your information a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety. This publication was issu ed under the authority of the Highway Safety Act of 1966, 23 U.S.C. @@ 401, et seq., which authorizes this agency to issue nonbinding guidelines to which states may refer in developing their own highway safety programs. Guideline 17, jointly issued by t his agency and the Federal Highway Administration, provides recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs. The Guideline recommends, among other things, that any school vehicle designed to carry 11 or more persons should comply with all Federal safety standards applicable to school buses at the time the vehicle was manufactured.

The second issue concerns the meaning of "school" with respect to our school bus safety standards. The school bus safety requirements apply only to new buses used to transport preprimary, primary, or secondary school children. If Mr. Globig is asking a bout a college, such an institution is not considered a "school" as that term is used in our regulations. Therefore, new buses sold for transporting college students are not required to comply with the Federal school bus safety standards.

I hope this information is helpful to you in responding to your constituent. Should Mr. Globig have additional questions or need additional information, he should feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

ID: 8354

The Honorable Nick Smith
Member, United States House of
Representatives
121 South Cochran Avenue
Charlotte, MI 48813

Dear Mr. Smith:

Thank you for your letter regarding the inquiry from your constituent, Dave Globig of Spring Arbor College, concerning Federal requirements for the transportation of school children. I appreciate this opportunity to clarify our regulations on this subject.

Mr. Globig's understanding is that Federal law "will not allow certification of any vans made after 1995 and, after 1997, will not allow any vans to be certified." You stated that Mr. Globig was concerned about purchasing expensive vehicles and finding out later that "they cannot be certified."

By way of background information, 49 U.S.C. section 30101 et seq. authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles, including school buses. Under that authority, NHTSA issued a comprehensive set of school bus safety standards that ensures that school buses are one of the safest forms of transportation. These standards require school buses to have safety features that include emergency exits, strengthened body panel joints, protective seating and special lamps and mirrors. Our regulations require manufacturers to self-certify the compliance of their vehicles. Our regulations also require each person selling a new school bus to sell only buses that have been certified by the manufacturer as meeting these school bus safety standards.

Under our regulations, a motor vehicle, including a van, designed to carry 11 or more persons (including the driver) is classified as a "bus." A "school bus" is defined as a bus that is sold "for purposes that include carrying students to and from school or related events." The term "school" refers to preprimary, primary, and secondary school.

With regard to Mr. Globig's belief that after 1995, Federal law will not allow any vans to be certified, there is no such prohibition going in effect. NHTSA has no requirement that would prevent a manufacturer from certifying its van as meeting all applicable FMVSSs, including the school bus standards, if the vehicle in fact complied with those standards.

There are two issues we would like to bring to Mr. Globig's attention. The first issue relates to which requirements apply to the use of school vehicles. The responsibility for complying with our school bus requirements rests with the manufacturer and seller of a new bus. The school purchaser, on the other hand, has no obligation under our regulations to purchase and use a complying school bus, or any other type of vehicle. Since Federal law applies only to the manufacture and sale of a new vehicle, under our regulations, a school may use any vehicle it chooses to transport its students. NHTSA does not have the authority to prevent a school from using any of its vehicles.

Once a new vehicle has been sold, the use of that vehicle becomes subject to state law. Thus, Mr. Globig should contact state officials for information about any requirements Michigan might have concerning the use of vans as school vehicles. NHTSA strongly recommends that school children only be carried in vehicles meeting Federal school bus safety standards. We have enclosed for your information a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety. This publication was issued under the authority of the Highway Safety Act of 1966, 23 U.S.C. '401, et seq., which authorizes this agency to issue nonbinding guidelines to which states may refer in developing their own highway safety programs. Guideline 17, jointly issued by this agency and the Federal Highway Administration, provides recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs. The Guideline recommends, among other things, that any school vehicle designed to carry 11 or more persons should comply with all Federal safety standards applicable to school buses at the time the vehicle was manufactured.

The second issue concerns the meaning of "school" with respect to our school bus safety standards. The school bus safety requirements apply only to new buses used to transport preprimary, primary, or secondary school children. If Mr. Globig is asking about a college, such an institution is not considered a "school" as that term is used in our regulations. Therefore, new buses sold for transporting college students are not required to comply with the Federal school bus safety standards.

I hope this information is helpful to you in responding to your constituent. Should Mr. Globig have additional questions or need additional information, he should feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure ref:571 d:2/27/95

ID: nht88-1.29

TYPE: INTERPRETATION-NHTSA

DATE: 02/09/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Karen Hastie Williams -- Crowell & Moring

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. Karen Hastie Williams Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, DC 20004-2505

This is in reply to your letter of December 1, 1987, on behalf of your client, LTV Aerospace, and its predecessor, AM General. You have asked that we reconsider our letter of January 12, 1987, in which we informed AM General that we would consider certai n military vehicles "motor vehicles" for purposes of notification and remedy in the event they are discovered to have safety related defects. You have also asked for the opportunity to meet with us at our earliest convenience.

Because AM General had stated that the vehicles in question are designed to be used 60% of the time on primary and secondary roads, our letter concluded that tactical military vehicles such as the M998 Series 1 1/4 ton truck, the 2 1/2 ton M44 Series, an d the 5-ton M809 and M939 Series trucks are "motor vehicles". You believe that this interpretation was based upon "inadequate and misleading information", for the following reasons, paraphrased as follows:

1. The trucks are designed to military specifications and built for the military alone.

2. The government rejects a warranty concept and substitutes its own inspection and quality control standards.

3. Under the inspection clause, AM General must deliver trucks that meet contractual performance requirements and correct problem areas identified by the government.

4. AM General must comply with a performance safety standard (MIL-STD-1180B) comparable to the Federal motor vehicle safety standards.

5. No safety purpose is served by "superimposing" a notification and remedy requirement where there is only a single purchaser, where no warranty relationship exists, and where remedies for defective products are identified by the government and remedy i mplemented by the company under the terms of the contract.

6. The vehicles are defined in part as "seldom capable of maintaining normal highway speeds" and "usually operated in convoy on public highways".

In consideration of the foregoing you have asked for an interpretation that concludes that military tactical vehicles are specifically designed to meet military specifications and are not manufactured primarily for highway use, that they are not subject to the notice and remedy provisions of the National Traffic and Motor Vehicle Safety Act (the "Act"), and that they are exempt from compliance with the Federal motor vehicle safety standards.

We have reconsidered our interpretation in light of the arguments you have presented. For both legal and policy reasons we affirm that the trucks in question are "motor vehicles" as defined by 15 U.S.C. 139113), that vehicles produced to military specifi cations are exempt from the Federal motor vehicle safety standards (49 CFR 571.7(c)), but that they are subject to statutory notification and remedy provisions in the event that they incorporate a safety related defect.

Specifically, the sole legal criterion that the Act establishes to determine its jurisdiction is whether a vehicle is manufactured primarily for use on the public roads. From the information presented to us by AM General we concluded that the trucks in q uestion spend 60% of their operational life on primary and secondary roads, and that therefore they have been manufactured primarily for use on such public roads. You have not contested that assertion. It is immaterial to the Act's definition of "motor v ehicle" that a truck is produced under military specifications, without an express warranty, and for only a single purchaser.

Although Congress expressed no intent that military vehicles be excluded from the coverage of the Act, the agency determined for reasons of policy that vehicles manufactured pursuant to military specifications should be exempted from conformance with the Federal motor vehicle safety standards issued under the authority of the Act. Comments received at the end of 1966 in response to the proposals for the initial standards raised the possibility that compliance in some instances could affect the capabilit y of equipment to fulfill its military mission, and therefore when the standards were adopted military vehicles were exempted under 49 CFR 571.7(c), but the agency relinquished no other jurisdiction over them. Indeed, the Department of Defense in apparen t recognition that its vehicles are "motor vehicles" has attempted to ensure that they conform with the Federal safety standards to the extent practicable, as evidenced by MIL-STD-1180B which you enclosed.

Finally, we cannot agree with your contention that no additional benefit would flow to the government by requiring notification and remedy for safety related defects in these vehicles. We understand that AM General is required to deliver vehicles free of defects and which meet contractual specifications, but we are uncertain whether, under the inspection clause, the government has a right to demand remedy once it has accepted delivery of the vehicle in the event that safety related defects manifest them selves in service. Such a right exists independently under the notification and remedy provisions of the Act (i.e. the Department of Defense may petition this agency for a determination that a safety related defect exists). Further, the manufacturer itse lf has a good faith obligation imposed by the Act to determine the existence of a safety related defect when the facts so indicate, and to effectuate notification and remedy. Such an obligation appears absent from the contractual responsibilities of a ma nufacturer in the materials you have quoted to us and the arguments you have made.

Because your letter contains information sufficient for us to affirm our earlier letter, we have concluded that a meeting will not be required to clarify any of the points you have made.

Sincerely,

Erika Z. Jones Chief Counsel

December 1, 1987

Erika Z. Jones, Esq. Chief Counsel National Highway Traffic Safety Administration Room 5219 400 - 7th Street, S.W. Washington, D.C. 0590

Dear Ms. Jones:

On behalf of AM General and its successor, LTV Aerospace, this letter seeks further clarification of your January 12, 1987, communication to Donald Weiher, of AM General's Product Assurance Division. The January letter discussed the applicability of the notification and remedy provisions of the National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, S113, 80 Stat. 718 (amended 1974)(codified as amended at 15 U.S.C. SS1411-1420 (1976)) with respect to safety-related defects discovered in tactical, military vehicles.

AM General currently manufactures only military tactical vehicles for use by one customer, the Federal Government.1/ As we understand your decision, you base your conclusion as to the applicability of the Safety Act to military tactical vehicles on two g rounds.

1/ In June, 1987, AM General was terminated as a member of the Motor Vehicle Manufacturers Association ("MVMA") because ceased to meet the membership criteria. AM General failed to report the sale of any qualifying vehicles in its current fiscal year. T he MVMA Bylaws identify members as "corporations actually engaged in the manufacture and sale of motor vehicles in the United States" and define motor vehicles as "passenger cars, commercial cars, trucks, buses and similar self-propelled vehicles suitabl e for use on public highways, but not . . . combat or tactical vehicles sold for military purposes."

First, the generalization in Mr. Weiher's September 8, 1986 petition that states without documentation: ". . . all tactical vehicles are designed for cross-country (40%), secondary (30%) and primary (30%) roads . . ." Second, the Federal Highway Adminis trator's interpretation of the Safety Act definition of a motor vehicle in 34 Fed. Reg. 15416 (1969) that states: "that in the absence of clear evidence that as a practical matter a vehicle is not being, or will not be, used on the public streets, roads or highwa ys the operating capability of a vehicle is the most relevant factor in determining whether or not that vehicle is a motor vehicle under the Act."

We respectfully submit that the January interpretation of the regulation was based on inadequate and misleading information. We ask further that you reconsider that interpretation in light of the additional data and information presented herein:

1. The M998 Series, a 1 1/4-ton truck, and other tactical military trucks such as the 2 1/2-ton M44 Series and the 5-ton M809 and M939 Series are designed to military specifications and built for the military customer alone.

2. The Government rejects the warranty concept in its contractual arrangement and instead substitutes its own inspection and quality control standards (MIL-STD-1180). Attachment A.

3. Under the inspection clause, AM General must deliver trucks that meet the contractual performance requirements and correct problem areas identified by the Government.

4. Under the Government contract, AM General must comply with a performance safety standard (MIL-STD-1180) comparable to the Federal Motor Vehicle Safety Standards.

5. No federal regulatory or safety purpose is served by superimposing a notification and remedy requirement under Section 113 of the Safety Act (amended 1974) (current version at 15 U.S.C. 551411-1420), on these tactical military vehicles that must satis fy the federal specification.

. The Government is the only customer for these military tactical vehicles.

. No warranty relationship exists between the Government and seller.

. Remedy for performance failures or defective products are identified by the Government and implemented by the company under the terms of the contract.

. No additional benefit would flow to the Government.

. Expense of notification to the individual Government users would be significant and a waste of resources since any problems will be corrected under the contract.

While a theoretical generalization about operating capability may serve as an adequate generic description of tactical vehicles, the AM General military tactical vehicles are bought exclusively by the Government primarily for off-road, cross-country use. This fact is supported by the description of the vehicle contained in the contractual document, System Specification 3.1. (See Attachment B). The performance standards required by the contract also attest to the actual type of roads on which this milita ry tactical vehicle is used. Specifically, Section 3.1.2 of MIL-STD-1180B (the current version of MIL-STD-1180) states:

"High mobility tactical wheeled vehicles are expressly designed and built to Government specifications for the purpose of handling cargo while negotiating very rough terrain.... They are capable of operating in deep mud or snow, are often articulated, an d are seldom capable of maintaining normal highway speeds. They are usually operated in convoy on public highways. (emphasis added)

The reality of these circumstances overrides any theoretical operating capability characterization. Accordingly, the actual usage experience of these vehicles confirms that they are not designed, manufactured or intended for use primarily on public roads .

Based on the information and data presented herein, LTV Aerospace respectfully requests that you reconsider your January 12, 1987 guidance and reinstate the decisions of National Traffic and Motor Vehicle Safety Act non-applicability of February 19, 1986 and March 5, 1986 from the Office of Defects Investigation. Namely, with respect to the appropriate treatment of tactical military vehicles, we request that upon further consideration you issue a concurrence with the earlier decisions by the Office of D efects Investigation. We believe that the determination should conclude that:

o Military tactical vehicles are specifically designed to meet military specifications and are not manufactured primarily for highway use.

o These vehicles are not subject to the notice and recall provisions of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 551411-1420 and are exempt from compliance with the Federal Motor Vehicle Safety Standards, 49 C.F.R. 5571.7(c) (1986).

Should you need any additional information, please contact me at the above number.

We would appreciate the opportunity to meet with you at your earliest convenience and await your affirmative action in support of this request.

Sincerely,

Karen Hastie Williams Counsel for AM General/LTV Aerospace

cc: Mr. Taylor Vinson, Office of the Chief Counsel

ID: 1982-2.26

DATE: 07/26/82

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: B. S. Horton

TITLE: FMVSS INTERPRETATION

TEXT:

JUL 26 1982

Mr. Bernard S. Horton 100 Memorial Drive Cambridge, MA 02142

Dear Mr. Horton:

This responds to your recent letter regarding the roof crush requirements of Federal Motor Vehicle Safety Standard No. 216. You ask why convertibles are excluded from the requirements of the standard, yet the BMW 318 which has a "targa" roof is not excluded.

Convertibles were excepted from Safety Standard No. 216 when the standard was first issued in 1971 because it was impossible for most convertibles to comply with the requirements. The legislative history of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381, et seq.), which authorizes the issuance of our safety standards, clarifies that Congress did not intend for the safety standards that would be issued to effectively preclude any type of existing motor vehicle. If no exception had been provided, the requirements of Safety Standard No. 216 would have caused the production of convertibles to cease. For this reason alone, they were excepted from the requirements.

The agency has limited the convertible exception to vehicles for which it is truly impractical to comply. While our regulations do not include a formal definition of "convertible", the agency has stated that it considers a convertible to be a vehicle whose "A" pillar or windshield peripheral support is not joined with the "B" pillar (or rear roof support rearward of the "B" pillar position) by a fixed, rigid structural member. Therefore, passenger cars equipped with a "sun roof", "hurst hatch roof" or "targa roof" do not qualify as convertibles, because they have a fixed, rigid structural member in the described location. This interpretation applies, moreover, whether the rigid structural member joining the "A" and "B" pillars is a hidden reinforcing component or whether the structural member is part of the exterior roof panel.

I am sorry that you are unable to obtain the BMW 318, but this is primarily due to the fact that the manufacturer has chosen not to bring this model into compliance with Safety Standard No. 216. As you probably know, there are other models with "targa roofs" and "hurst roofs" that are in compliance with the standard and currently in use.

You also mention the fact that many vehicle custom shops cut one or more panels from vehicles to make them into convertibles or "targas". You state that there seems to be no prohibition to this. There are certain prohibitions, however. Section 108(a)(2)(A) of the Vehicle Safety Act specifies that no manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative in whole or part any device or element of design installed on or in a motor vehicle in compliance with a motor vehicle safety standard. This means that custom shops cannot cut panels from a used vehicle's roof if such operation would impair the vehicle's compliance with Safety Standard No. 216. Failure to observe this prohibition could result in civil penalties up to $1,000 for each violation. Please note, however, that the custom shops are not precluded by this section from totally removing a vehicle roof, thereby converting the vehicle into a convertible. The prohibition does not apply to such a conversion since the vehicle would not have had to comply with Standard No. 216 if it had originally been manufactured as a convertible.

I realize that these various distinctions may be confusing. If you have any further questions, please contact Hugh Oates of my staff at 202-426-2992.

Sincerely,

Frank Berndt Chief Counsel

100 Memorial Drive Cambridge, MA 02142 July 13, 1982

Frank Berndt, Esq. Office of the Chief Counsel NATIONAL HIGHWAY TRANSPORTATION SAFETY ADMINISTRATION 400 7th Street S.W. Washington, D.C. 20590

Dear Mr. Berndt:

I am trying to determine why one automobile or another might or might not meet Standard 216 or some other standard for roof crush resistance.

Specifically, I have been interested in buying an Americanized version of a BMW 318 cabriolet. I am told that it can't be imported here because it doesn't meet roll-over or roof crush requirements. Yet, as indicated by the enclosed article, convertibles are becoming popular again. They, at least the soft top ones I've seen, have no roof crush resistance.

By my way of thinking, a cabriolet, which is often called a "targa" because it has a section of roof which can be removed, and perhaps a drop down back window behind a bar, should be safer than a soft top convertible. In fact, customizing shops offer the cutting of one or more panels from the many makes of cars to make them into convertibles or "targas". There seems to be no prohibition to this.

Can you clarify why the BMW Cabriolet, in the light of what is on our roads, seems to be singled out as unacceptable?

Thank you very much for your help.

Sincerely,

Bernard S. Horton

BSH/lp

ID: nht93-1.13

DATE: January 19, 1993

FROM: Olin Wright

TO: Porter Goss -- U.S. House of Representatives

TITLE: None

ATTACHMT: Attached to letter dated 5-17-93 from John Womack to Olin Wright (A41; Std. 208)

TEXT: This is to follow up our telephone conversation this weekend and the call from Sheryl about airbags in automobiles.

I would like to establish a company to install airbags in automobiles not currently equipped with these life saving safety systems. As of this date, I have been unable to find a supplier who will sell me the airbags. I have contacted many companies here and abroad without success.

The bags are made in this country by both Morton International and TRW. I am not interested in anything but the best quality that can be bought. I need complete systems, ready for installation.

I will appreciate any help which you and your staff can give me. I feel that every day there is additional unnecessary loss of life.

January 27, 1993

The Honorable Porter Goss House of Representatives Washington, DC

Dear Rep. Goss:

I hope you received my FAX on January 19, 1993 pertaining to retrofitting airbags in automobiles. Below is a quote from the February 1993 issue of MOTOR TREND magazine which has interesting figures on automobile crash costs:

"While traffic fatality rates continue falling to historic lows, the National Highway Traffic Safety Administration reports the total dollar cost to the nation from motor vehicle crashes keeps going up. In 1990, we spent $137.5 billion -- roughly 2 percent of the country's gross national product -- for lost market and household productivity ($50.6 billion), property damage ($45.7 billion), medical costs ($13.9 billion), insurance administration ($10 billion), legal and court costs ($9 billion), and other costs ($3 billion)."

Much of the drop in fatality rates can be attributed to the increase use of seatbelts and airbags. There are many lives and much money to be saved by the continued use of airbags in automobiles, particularly the retrofitting of airbags in older automobiles. I hope you and your staff will continue to do whatever you can to see that these important safety systems are made available

to the public. The establishment of a company to install these airbags would provide jobs for hundreds of persons now unemployed.

I hope to hear from you soon.

Sincerely,

Olin Wright

Phone: 313-489-2073

April 7, 1993

Mr. Stanley Feldman Congressional Liaison Department of Transportation National Highway Traffic Safety Administration 400 7th Street, S.W. Room 5219 Washington, DC 20590

RE: Name: Mr. Olin Wright Address: 6852 Sandtrap Drive Fort Myers, Fl. 33919 Claim/File #:

Gentlemen:

Enclosed please find correspondence from the referenced constituent.

I would appreciate your immediate review of the concerns addressed in this correspondence and your prompt response as to what action will be taken by your office.

As Mr. Wright is anticipating a prompt response from you, my thanks in advance for your prompt attention to this matter.

PLEASE RESPOND DIRECTLY TO MR. WRIGHT AT THE ABOVE ADDRESS.

Sincerely,

Peter Goss Member of Congress

ID: nht94-2.17

TYPE: Interpretation-NHTSA

DATE: April 5, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Mark Archer -- Orbital Engine Company Pty. Ltd. (Australia)

TITLE: None

ATTACHMT: Attached to fax dated 10/5/93 from Mark Archer to NHTSA (OCC 9183)

TEXT:

This responds to your letter in which you asked if the National Highway Traffic Safety Administration (NHTSA) has any regulations affecting a vehicle that has an automatic engine shut-off device that operates when the vehicle remains idle for extended pe riods. I regret the delay in responding.

By way of background information, NHTSA administers Federal requirements for the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment. The National Traffic and Motor Vehicle Safety Act ("Safety Act," copy enclosed) est ablishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards (FMVSS's). This process requires each manufacturer to determine in the exerc ise of due care that its products meet all applicable requirements. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines th at a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncom plying item it produces. I have enclosed an information sheet that highlights these responsibilities.

We cannot tell from your letter whether you seek to produce a vehicle that has a shut-off device installed as original equipment ("O.E."), i.e., prior to a first sale to a consumer, or produce the device as an "aftermarket" item of equipment, sold for in stallation in used vehicles. We will discuss both situations in this letter.

A shut-off device may not be installed on a new vehicle if the device causes the vehicle not to comply with all applicable FMVSS's. Standard No. 102, "Transmission shift lever sequence, starter interlock, and transmission braking effect," states that "t he engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position." (S3.1.3). NHTSA does not know of any shut-off device that would enable a vehicle to meet S3.1.3 of Standard 102. In 1984, NHTSA termina ted rulemaking on an action that would have amended S3.1.3 to permit a shut-off device that restarted the vehicle's engine when the accelerator is depressed. A copy of the termination notice is enclosed. The agency terminated rulemaking citing a number of safety concerns with the particular features of the shut-off device that was the subject of the rulemaking. NHTSA stated in the notice that, if in the future a more effective and safe fuel saving device is developed, NHTSA would again consider amend ing Standard 102. However, given that S3.1.3 of Standard 102 was not amended, that section precludes the O.E. installation on a shut-off device such as the one described in the termination notice.

With respect to the aftermarket installation of a shut-off device, there is currently no FMVSS that directly applies to the product. Standard 102 applies only to new motor vehicles and not to aftermarket components of a vehicle's transmission, such as a shut-off device.

However, there are other Federal requirements that indirectly affect the manufacture and sale of a shut-off device. Under the Safety Act, the product is considered to be an item of motor vehicle equipment. As explained above, each manufacturer of motor vehicle equipment is subject to the requirements in SS151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. In the event that the manufacturer or NHTSA 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.

Manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to S108(a)(2)(A) of the Safety Act, which states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any de vice or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ...." This means that if a shut-off device were sold in the "aftermarket," no manufact urer, distributor, dealer, or motor vehicle repair business could install it if doing so would render inoperative any previously certified item of equipment in the vehicle. As explained above, each motor vehicle is certified as meeting Standard 102. A shut-off device that causes the vehicle to no longer comply with Standard 102 could not be installed by any person listed in section 108(a)(2)(A) without subjecting that person to civil penalties (section l09 of the Safety Act specifies a civil penalty o f up to $1,000 for each violation of S108).

The "render inoperative" prohibition of S108(a)(2)(A) does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles. However, NHTSA urges all owners not to perform modifications that would degrade the safety of their vehicles, such as installing a fuel shut-off device that raises significant safety concerns.

I hope this responds to your concerns. If you have any further questions, please contact David Elias of my staff at this address or by telephone at (202) 366-2992.

ID: nht94-7.4

DATE: April 5, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Mark Archer -- Orbital Engine Company Pty. Ltd. (Australia)

TITLE: None

ATTACHMT: Attached to fax dated 10/5/93 from Mark Archer to NHTSA (OCC 9183)

TEXT:

This responds to your letter in which you asked if the National Highway Traffic Safety Administration (NHTSA) has any regulations affecting a vehicle that has an automatic engine shut-off device that operates when the vehicle remains idle for extended periods. I regret the delay in responding.

By way of background information, NHTSA administers Federal requirements for the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment. The National Traffic and Motor Vehicle Safety Act ("Safety Act," copy enclosed) establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards (FMVSS's). This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces. I have enclosed an information sheet that highlights these responsibilities.

We cannot tell from your letter whether you seek to produce a vehicle that has a shut-off device installed as original equipment ("O.E."), i.e., prior to a first sale to a consumer, or produce the device as an "aftermarket" item of equipment, sold for installation in used vehicles. We will discuss both situations in this letter.

A shut-off device may not be installed on a new vehicle if the device causes the vehicle not to comply with all applicable FMVSS's. Standard No. 102, "Transmission shift lever sequence, starter interlock, and transmission braking effect," states that "the engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position." (S3.1.3). NHTSA does not know of any shut-off device that would enable a vehicle to meet S3.1.3 of Standard 102. In 1984, NHTSA terminated rulemaking on an action that would have amended S3.1.3 to permit a shut-off device that restarted the vehicle's engine when the accelerator is depressed. A copy of the termination notice is enclosed. The agency terminated rulemaking citing a number of safety concerns with the particular features of the shut-off device that was the subject of the rulemaking. NHTSA stated in the notice that, if in the future a more effective and safe fuel saving device is developed, NHTSA would again consider amending Standard 102. However, given that S3.1.3 of Standard 102 was not amended, that section precludes the O.E. installation on a shut-off device such as the one described in the termination notice.

With respect to the aftermarket installation of a shut-off device, there is currently no FMVSS that directly applies to the product. Standard 102 applies only to new motor vehicles and not to aftermarket components of a vehicle's transmission, such as a shut-off device.

However, there are other Federal requirements that indirectly affect the manufacture and sale of a shut-off device. Under the Safety Act, the product is considered to be an item of motor vehicle equipment. As explained above, each manufacturer of motor vehicle equipment is subject to the requirements in SS151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. In the event that the manufacturer or NHTSA 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.

Manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to S108(a)(2)(A) of the Safety Act, which states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ...." This means that if a shut-off device were sold in the "aftermarket," no manufacturer, distributor, dealer, or motor vehicle repair business could install it if doing so would render inoperative any previously certified item of equipment in the vehicle. As explained above, each motor vehicle is certified as meeting Standard 102. A shut-off device that causes the vehicle to no longer comply with Standard 102 could not be installed by any person listed in section 108(a)(2)(A) without subjecting that person to civil penalties (section l09 of the Safety Act specifies a civil penalty of up to $1,000 for each violation of S108).

The "render inoperative" prohibition of S108(a)(2)(A) does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles. However, NHTSA urges all owners not to perform modifications that would degrade the safety of their vehicles, such as installing a fuel shut-off device that raises significant safety concerns.

I hope this responds to your concerns. If you have any further questions, please contact David Elias of my staff at this address or by telephone at (202) 366-2992.

ID: nht92-7.50

DATE: April 3, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Frederick Harris -- Frederick Harris Associates

TITLE: None

ATTACHMT: Attached to letter dated 2/5/92 from Frederick Harris to National Highway Traffic Safety Institute (OCC 6971)

TEXT:

This responds to your letter asking about Federal motor vehicle safety standards applicable to your product, which you described as a cloth device containing plastic items useful to a baby, for use in motor vehicles. You explained that your product would be placed in a motor vehicle adjacent to, but not touching, a child in a nearby child safety seat. In particular, you were concerned about flammability resistance standards applicable to your product. I am pleased to have this opportunity to explain our requirements to you. I am also enclosing a copy of a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."

By way of background information, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Section 102(4) of the Safety Act defines, in relevant 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 ...

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. 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 the 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 intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the cloth device containing baby items, it appears that your product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of your device, it appears that a substantial portion of its expected use will be during the operation of a motor vehicle. In a telephone conversation with Ms. Dee Fujita of my staff, you explained that your device is intended to be sold for use in motor vehicles. In addition, it appears that your product would typically be used by ordinary users of motor vehicles.

While it appears that your device would be considered an item of motor vehicle equipment, this agency has not issued any standards setting forth performance requirements for such a device. Obviously, your device could not be

determined to be in noncompliance with a safety standard if there is no applicable safety standard.

As for your concern about flammability resistance requirements, please be advised that our safety standard about this issue, Standard No. 302, Flammability of Interior Materials, (49 CFR S571.302, copy enclosed), would not apply to your device. That standard sets forth such requirements applicable to new motor vehicles and not to motor vehicle equipment.

You should be aware that, as a manufacturer of an aftermarket item of motor vehicle equipment, you 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 you or NHTSA determines that your product contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge.

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.

Attachments

Two NHTSA information sheets dated September, 1985, entitled Information For New Manufacturers of Motor Vehicles and Motor Vehicle Equipment and Where to Obtain Motor Vehicle Safety Standards and Regulations. (Text of attachments omitted.)

ID: 12583-2.pja

Allen F. Brauninger, Esq.
Regulatory Affairs Division
Office of the General Counsel
Consumer Product Safety Commission
Washington, D.C. 20207

Dear Mr. Brauninger:

This letter responds to your inquiry of whether PepperGas brand Defensive Pepper Spray (a defensive chemical spray used for protection from attackers) is an item of motor vehicle equipment. You forwarded a letter and some advertising literature from Mr. Dennis English, who after purchasing the "specially formulated automotive model" spray in a market, attached it to his sun visor, as illustrated in the advertising. While he was driving, the canister of spray leaked on him and on his child safety seat. The answer to your question is that this model of PepperGas defensive spray is an item of motor vehicle equipment.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. 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 "specially formulated automotive model" PepperGas spray, we conclude that it is an accessory. The advertising and product labeling state that "PepperGas brand for automobiles" is "designed for personal protection and safe storage in vehicles." It says it is needed "while driving your own automobile." It is allegedly "especially formulated" to withstand the extreme temperatures in parked vehicles, up to 200 degrees F. It is advertised and pictured as attached to the sun visor, map pouch, center console and other vehicle locations with the built-in clip or enclosed Velcro backing. Due to the advertising, special design, and labeling, we conclude that its expected use is related to the operation of the motor vehicle. Since Mr. English purchased it at a market, we conclude that the product is purchased and principally used by ordinary users of motor vehicles. We note that only this particular model which is marked to be used especially in motor vehicles is a motor vehicle accessory.

Mr. English may call NHTSA's Auto Safety Hotline at (800) 424-9393 to report the incident. If you have any further questions, please feel free to contact Paul Atelsek of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

cc: Mr. Dennis English
ref:VSA
d:1/30/97