ID: 8079

John Paul Barber, Esq.
Legislative Counsel
American Association of Blood Banks
8101 Glenbrook Road
Bethesda, Maryland 20814-2749

Dear Mr. Barber:

This responds to your letter asking whether second stage manufacturers may affix additional certification labels with a new gross vehicle weight rating (GVWR) on vehicles. You asked this question in the context of the Federal Highway Administration's commercial driver's license program which applies in part to commercial vehicles with a GVWR of 26,001 pounds or more.

You stated in your letter that your organization has advised its members that second stage manufacturers that convert buses to bloodmobiles have the authority under 49 CFR Parts 567 and 568 to affix an additional label with a new GVWR to newly converted vehicles as well as to vehicles already in use. You stated, however, that you have since received a legal opinion from a private party asserting that those regulations preclude affixing an additional label to vehicles already in use. You enclosed a copy of your earlier advice (American Association of Blood Banks Bulletin #92-5), which reads in part as follows:

Many bloodmobiles have a gross vehicle weight rating of 26,001 or more pounds. This renders the bloodmobiles commercial motor vehicles requiring an operator with a commercial driver's license. However, options may be available to avoid the classification of bloodmobiles as commercial motor vehicles on the basis of their gross vehicle weight rating.

. . . When originally constructed, buses will be given gross vehicle weight ratings in excess of 26,000 pounds. When converted for use as bloodmobiles, their actual weight is reduced to two or three thousand pounds less than the 26,000 pound threshold, yet many converters do not change the gross vehicle weight rating.

By federal regulation, vehicle converters have the authority to affix an additional label containing a new gross vehicle weight rating, to newly converted vehicles as well as to vehicles already in use. Title 49 Code of Federal Regulations, Sections 567 and 568.

I am pleased to have this opportunity to explain our regulations to you. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue safety standards applicable to new motor vehicles and new motor vehicle equipment. NHTSA does not, however, approve motor vehicles or motor vehicle equipment. Instead, under the Safety Act, manufacturers are required to certify that their products meet all applicable safety standards.

I will first discuss the issues you raise concerning new vehicles. Under NHTSA's certification regulations (Parts 567 and 568), manufacturers must assign a GVWR to a new vehicle. The term GVWR is defined in 49 CFR Part 571.3 as "the value specified by the manufacturer as the loaded weight of a single vehicle." The GVWR informs vehicle owners how heavily the vehicle may safely be loaded. It also affects the vehicle's loading and other test conditions for the safety standards to which the vehicle must be certified, and at which NHTSA conducts any compliance testing. NHTSA expects the GVWR to reflect a manufacturer's good-faith evaluation of the vehicle's size, weight and load carrying capacity. The only express regulatory limitation on the GVWR that manufacturers may assign to their vehicles is set forth in 49 CFR Part 567. Section 567.4(g)(3) provides that the assigned GVWR "shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity." See also section 567.5.

You asked about the authority of persons who convert buses to bloodmobiles to reduce the GVWR of the vehicle. I note that, assuming that the conversion takes place before the first sale of the vehicle for purpose other than resale, i.e., while the vehicle is still new, the converter would be considered either a "final stage manufacturer" or an "alterer," depending on the circumstances. A final stage manufacturer is a person who performs such manufacturing operations on an incomplete vehicle that it becomes a complete vehicle. See 49 CFR Part 568.3. An alterer is a person who modifies a previously certified, new motor vehicle. See 49 CFR Part 567.6, 567.7, and 568.8.

A final stage manufacturer is ordinarily responsible for making the final assignment of GVWR for a vehicle that it completes. See 49 CFR Part 567.5(c). (Special requirements apply if the incomplete vehicle manufacturer or an intermediate vehicle manufacturer assume legal responsibility for all duties imposed by the Safety Act.) However, as discussed below, a final stage manufacturer may, as a practical matter, need to assign to the completed vehicle a GVWR that is consistent with that specified by the incomplete vehicle manufacturer.

Incomplete vehicle manufacturers (typically GM, Ford or Chrysler) are required to furnish with the incomplete vehicle a document which specifies, among other things, the GVWR of the completed vehicle for which the incomplete vehicle is intended (i.e., the GVWR that is appropriate for the incomplete vehicle when completed) and statements concerning how the design of the incomplete vehicle affects conformity with safety standards. See 49 CFR Part 568.4. Moreover, manufacturers of chassis-cabs are required also to attach a certification label concerning the conformance of the chassis- cab with safety standards. See 49 CFR Part 567.5(a). (A chassis-cab is an incomplete vehicle, with a completed occupant compartment, that requires only the addition of cargo-carrying, work-performing, or load-bearing components to perform its intended function.)

If a final stage manufacturer wishes to base its certification on the incomplete vehicle document or other information furnished by the incomplete vehicle manufacturer, as the vast majority of final stage manufacturers do in actual practice, the final stage manufacturer will likely need to assign to the completed vehicle a GVWR that is consistent with that specified by the incomplete vehicle manufacturer. I note that, since most safety performance requirements are easier to meet at lower loads than higher loads, it is possible that a final stage manufacturer might be able to justify assigning a reduced GVWR to some vehicles. We would urge the final stage manufacturer to consult with the incomplete vehicle manufacturer about such an action. As indicated above, the reduced GVWR would need to comply with the requirement set forth in 49 CFR Part 567.4(g)(3), and we would expect it to reflect the manufacturer's good-faith evaluation of the vehicle's size, weight and load carrying capacity.

I note that the final stage manufacturer is subject to the same basic requirements concerning GVWR as a single stage manufacturer. I have enclosed a copy of an April 29, 1991 letter to Mitsubishi which discusses the issue of reducing the GVWR of certain vehicles.

An alterer has a more limited certification responsibility. Under 49 CFR Part 567.7, an alterer must allow the original certification label to remain on the new vehicle and must affix an additional label which states that, as altered, the vehicle "conforms to all applicable Federal Motor Vehicle Safety Standards affected by the alteration." If the GVWR of the vehicle as altered is different from that shown on the original certification label, the modified value must be provided. I note, however, that since an alterer only certifies a vehicle with respect to the alterations it makes, the alterer would only have a basis to change the GVWR if the alterations are relevant to GVWR.

You also asked whether manufacturers may affix additional labels with a new GVWR to vehicles after they are sold for purposes other than resale, i.e., after they become used vehicles. As discussed above, the term GVWR refers to "the value specified by the manufacturer as the loaded weight of a single vehicle," and the GVWR is assigned by the vehicle's manufacturer as part of the certification process. Therefore, for purposes of NHTSA's regulations, a vehicle's GVWR is fixed as of the time of its first sale to a consumer. The only exception to this is if the manufacturer seeks to correct an error (e.g., calculation error or typographical error) regarding the originally assigned GVWR.

We recognize that certain modifications that might be made to a used vehicle (e.g., adding or deleting an axle) could make the originally assigned GVWR inappropriate for the vehicle as modified. While not required by our regulations, we believe it would be appropriate in such situations to add a label to the vehicle which indicates the appropriate loaded weight of the modified vehicle.

You also asked whether the affixing of a new label with an adjusted GVWR would have the effect of rendering existing bloodmobiles noncommercial motor vehicles for purposes of the Commercial Motor Vehicle Safety Act. Since the commercial driver's license program is administered by the Federal Highway Administration (FHWA), I have referred this question to that agency. If you wish to speak to someone at that agency about your question, you may contact Charles Medalen, of the FHWA Office of Chief Counsel, at (202) 366-1354.

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

Sincerely,

John Womack Acting Chief Counsel Enclosure ref:571.3#567 d:5/24/93

ID: nht93-1.22

DATE: 01/29/93

FROM: JOSEPH S. KAPLAN -- ROSS & HARDIES

TO: JOSEPH S. KAPLAN -- ROSS & HARDIES

TITLE: REQUEST FOR A LEGAL INTERPRETATION NEW FLYER INDUSTRIES, INC.

ATTACHMT: ATTACHED TO LETTER DATED 2-12-93 FROM JOHN WOMACK TO JOSEPH S. KAPLAN (A40; PART 568; PART 591)

TEXT: On behalf of New Flyer Industries Limited of Winnipeg, Manitoba, Canada, ("NFIL") we request a legal interpretation that bus shells which NFIL manufactures at its plant in Winnipeg and exports to an affiliated manufacturer, New Flyer of America (N.D.) Inc., ("NFND") for completion and delivery are exempt from the statutory prohibition against importing noncomplying motor vehicles and items of vehicle equipment and are exempt from bonding, and that the shells are admissible under 49 CFR 591.5 (e). The basis for this claim is that the shells require further manufacturing operations other than the addition of readily attachable equipment items and minor finishing operations to perform their intended function.

Facts

NFIL produces five models of bus shells (forty foot-diesel, forty-foot trolley bus, sixty-foot diesel, low floor diesel, and sixty-foot trolley bus) at its Winnipeg plant for exportation to NFND in Grand Forks, North Dakota. As exported, the shells are painted and equipped with tire and rim assemblies. The average standard labor hours to build the shell is 800 hours. At Grand Forks the shells are further manufactured into completed New Flyer buses. The final stage work undertaken in Grand Forks represents more than 50% of the production cost of the completed buses.

Major components added in the United States in the final building stage include bumpers, engine and oil filter (or propulsion system), power plant, starter system, cooling system, fuel system, interior lighting, electric system, destination signs, seating and stanchions, heating and air conditioning system, chair lift (except on low floor buses) and various option packages. Average standard labor hours expended in North Dakota to complete a bus from an imported shell are 300.

Thus, final stage operations clearly require significant and complex assembly operations, and constitute much more than the addition of readily attachable equipment components. The final stage labor input is a significant percentage (on average 27%) of total bus construction time, and the work done is necessary to convert the shell to a bus capable of performing its intended function.

Among the components added to diesel buses in the United States is the power plant. New Flyer buses are equipped with U.S.-made engines and transmissions which are delivered by the manufacturers directly to the Grand Forks assembly facility. In Grand Forks, the engines are mounted on engine cradles assembled in Grand Forks from subcomponents manufactured in Canada. The activity in the United States required to prepare and install the engines and transmissions requires the use of skilled labor and consumes 75 standard labor hours. The work cannot properly be described as the simple installation of an engine shipped separately from an otherwise complete bus or one requiring no more than the addition of mirrors, tires and rims.

Trolley bus shells require more or less the same second stage effort. The chief difference is merely that the propulsion system is based on a United States made electric motor and gear box rather than a diesel engine and transmission.

NFND is a final stage original equipment motor vehicle manufacturer. New Flyer buses which it completes and delivers to customers must, and do, conform to all applicable safety standards and are certified as in conformity with such standards.

Discussion

Although it is obvious that NFIL's shells are subject to the National Traffic and Motor Vehicle Safety Act of 1966 (the "Act"), a determination as to whether the shells are either vehicles or equipment is necessary. As noted in the Facts section, there is no power train in the imported shells. As a result, the shells do not meet the definition of "incomplete vehicle" in 49 C.F.R. @ 568.3, which requires as a minimum, in addition to other features, all of which are presented in the imported shells, the presence of a power train.

There are two approaches to dealing with this request. Your office may either determine that NFIL shells are incomplete vehicles within the meaning of 49 C.F.R. @ 568.3, and direct the Customs Service to permit the importation of the shells as noncomplying motor vehicles or it may determine that the shells are motor vehicles or items of motor vehicle equipment within the scope of 15 U.S.C. @ 1397(e) and 49 C.F.R. @ 591.5(e), and direct Customs to permit their importation exempt from conformance and bonding. We believe that the second alternative is the sounder approach.

Treatment of the shells as either vehicles or equipment was specifically contemplated in the Notice of Proposed Rule Making proposing the addition of a new Part 591 to Title 49 C.F.R. (54 Fed. Reg. 17772 April 25, 1989). In connection with proposed section 491.5(e), NHTSA explained that it is intended to implement new section 108(e) of the Act as amended by the Imported Vehicle Safety Compliance Act of 1988, P.L. 100-562, and in turn that new section 108(e), encompassing vehicles and equipment requiring further manufacture to perform their intended function, broadens the pre-existing exception from conformance available to vehicles built in two or more steps. Also the NPRM noted the practice of offering for importation vehicles without engines or other running gear parts, which NHTSA had treated as de facto importations of noncomplying motor vehicles, and specifically mentioned that such importations are now covered by section 108(e). Further, in a discussion in the same NPRM of motor vehicle equipment importations, the agency commented:

Under new section 108(e), an equipment item need not comply on importation if it requires further manufacturing to perform its intended function.

Clearly, therefore NFIL shells come within NHTSA's existing understanding of exempt articles under section 108(e) and this understanding is consistent with the plain meaning of both the statute and the regulation. Having so concluded however, it is still necessary to determine whether for the purpose of 49 C.F.R. @ 591.6(b) the shells are subject to the documentation requirements of @ 591.6(b) (1) (if vehicles) or @ 591.6(b)(2) (if equipment).

We have expressed our preference that the shells be deemed equipment rather than incomplete vehicles. There are two reasons. First, that would eliminate the need to deviate and explain away the deviation from the definition of incomplete vehicle in 49 C.F.R. @ 568.3. Second, it would reduce the paperwork burden on NFIL without compromising the beneficial purposes of the Act. NFIL does not contend that the shells are equipment to which no standard applies, and the commercial circumstances of their importation provide assurances that they will be brought into conformity in the course of final-stage manufacture. Thus the problems which caused NHTSA to treat imports without engines as vehicles despite the definitional requirements of section 568.3 are not present, and such de facto treatment is unnecessary. With regard to the documentation requirements of 49 C.F.R. @ 568.4 applicable to incomplete vehicles, the information required will be furnished when the completed buses are sold and delivered. Thus there is no harm or threat of harm to the public interest in permitting NFIL to enjoy the less burdensome documentary requirements of 49 C.F.R. @ 591.6(b)(2).

Requested Interpretation

For the foregoing reasons, we request that you hold that New Flyer forty and sixty foot diesel bus shells, low floor diesel bus shells and forty and sixty foot trolley bus shells are exempt from the bonding and conformance requirements of section 108(a) (1) (A) of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1397(a) (1) (A) pursuant to section 108(e) of the Vehicle Safety Act as amended by the Imported Vehicle Safety Compliance Act of 1988, P.L. 100-562, and may be declared on entry as vehicles or equipment items requiring further manufacturing operations to perform their intended function, other than the addition of readily attachable equipment items, or minor finishing operations, pursuant to 49 C.F.R. Part 591 and section 591.5(e) thereof. Based on the facts presented we request that you find that New Flyer bus shells are equipment items which require further manufacturing operations to perform their intended functions, and, thus, are exempt on compliance with the appropriate documentary requirements of 49 C.F.R. @ 591.6(b) applicable to items of vehicle equipment.

New Flyer bus shells covered by a @ 591.5(e) declaration will be accompanied by an appropriate written statement issued by NFIL.

Should any question exist concerning NFIL's entitlement to the requested determination, we will appreciate being notified and provided with an opportunity to discuss the issues with you and to amplify the record.

ID: aiam4383

Dear Mr. Osaki: This responds to your letter asking about the relationship between th maximum load ratings for the tires on a medium duty truck and the gross vehicle weight rating (GVWR) specified for that truck pursuant to 49 CFR Part 567, *Certification*. Specifically, you asked if the GVWR specified for a truck could slightly exceed the sum of the gross axle weight ratings specified for the truck. While none of our regulations prohibit your company from assigning a GVWR that exceeds the sum of the gross axle weight ratings for this medium duty truck, we recommend that you not do so, for the reasons explained below.; Your letter correctly notes that paragraph S5.1.2 of Standard No. 120 *Tire Selection and Rims for Motor Vehicles other than Passenger Cars* (49 CFR S571.120) requires that the sum of the maximum load ratings of the tires fitted to each truck axle shall be not less than the gross axle weight rating (GAWR) for the axle system, as specified on the vehicle certification label required by Part 567. However, Part 567 does not limit the GVWR that can be assigned to the sum of the GAWR's specified for a vehicle. Instead, S567.4(g)(3) requires that the vehicle certification label specify the GVWR of the truck and requires only that the specified GVWR 'shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity.'; Although Part 567 does not prohibit such a practice, we note tha assigning a GVWR to a vehicle that exceeds the sum of the GAWR's assigned to the vehicle (other than a semitrailer) would be encouraging the user of that vehicle to overload it. If the axles of a medium duty truck cannot safety bear the load specified in the GVWR, the vehicle will be overloaded whenever it is loaded to the specified GVWR. Such overloading poses a serious safety hazard for the affected vehicle in particular and for the motoring public in general. Several past interpretations on this subject have stated if a vehicle suffers a hazardous malfunction while in use that can be traced to the overloading of its axle systems, its manufacturer may be liable both under the defect provisions of the National Traffic and Motor Vehicle Safety Act and under common law product liability doctrines. To avoid giving rise to a potential safety hazard and the accompanying liability, we recommend that you specify a GVWR not greater than 17,196 pounds for the medium duty truck in question.; Sincerely, Erika Z. Jones, Chief Counsel

ID: nht87-1.90

TYPE: INTERPRETATION-NHTSA

DATE: 06/04/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Mike L. Yonker

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Mike L. Yonker Administrative Assistant State of New Mexico Department of Education -- Education Building Santa Fe, NM 87501-2786

Dear Mr. Yonker:

This responds to your letter asking about the regulations we administer for school buses. Your inquiry relates to three areas of school bus safety: (1) NHTSA's certification requirements for manufacturers of new school buses; (2) Federal requirements app licable to commercial business repairing school buses; and Federal requirements for vehicle alterers of both new and used school buses. I regret the delay in this response.

Before I begin to answer your specific questions, it might be helpful to provide some background information on our school bus regulations. Our agency has two sets of regulations for school buses which are issued under separate acts of Congress. The first set, issued under the authority of the National Traffic and Motor vehicle Safety Act of 1966 (copy enclosed), applies to the manufacture and sale of new motor vehicles and includes our motor b=vehicle safety standards for new school buses. These standards apply to various aspects of school bus safety, including emergency exits, seating systems, windows and windshields, fuel sy stems and school bus body strength. They became effective on April 1, 1977, and apply to each school bus manufactured on or after that date. The second set of "regulations" for school buses was issued under the authority of the Highway Safety Act. Those regulations, or "highway safety program standards," are recommendations from this agency to the states for developing their highway safety programs and includes guidelines on school bus inspection and maintenance.

The Vehicle Safety Act requires each manufacturer of a new school bus to certify that the vehicle complies with all applicable Federal Motor vehicle safety standards, including our school bus safety standards. The Act also requires each person selling ne w buses for pupil transportation purposes to ensure that only complying school buses are sold. Under Federal law, a "school bus" is a motor vehicle designed for carrying 11 or more students to and from school or related events. Any person violating the V ehicle Safety Act by manufacturing or selling new noncomplying school buses may be liable for potential penalties of up to $1,000 per violation.

Your first question asks for information on "the formal DOT certification process for new school buses, and the periodic NHTSA testing progress." NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we certify compliance of new school buses with our school bus safety standards. Instead, the Vehicle Safety Act establishes a "self-certification" process under which each school bus manufacturer is responsible for certifying th at its vehicles meet all applicable Federal motor vehicle safety standards. This process requires each manufacturer to determine in the exercise of due care that its school buses meet all applicable requirements. Our regulation for the certification of m otor vehicles is set forth in Title 49 of the Federal Regulations Part 567 (copy enclose).

We understand your reference to "the periodic NHTSA testing process" to mean our enforcement of our school bus safety standards. The agency periodically tests vehicles and equipment for compliance with the safety standards and also investigates other all eged safety-related defects associated with motor vehicles and motor vehicle equipment. If a manufacturer or the agency determines that a safety-related defect or noncompliance exists, the manufacturer is obligated to notify purchasers of the product and remedy the problem free or charge. Manufacturers who fail to provide notification of or remedy for a defect or noncompliance may be subject to a civil penalty of up to $1,000 per violation.

Your second question asks for information on "the requirements of the anti-tampering provision as applicable to dealers or any motor vehicle repair business which may repair buses". The "anti-tampering" provision you refer to is S108(a)(2)(A) of the Vehi cle Safety Act. Section 108(a)(2)(A) affects dealers and motor vehicle repair businessmen modifying or repairing new or used motor vehicles by setting limits on the operation performed on those vehicles. It states, in part:

No manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an app licable Federal motor vehicle standard . . . . Section 108(a)(1)(A) prohibits the aforementioned parties from either removing, disconnecting or degrading the performance of safety equipment or designs installed in compliance with applicable Federal safet y standards. Thus, school bus dealers or repair businesses modifying or repairing school buses must not render inoperative the compliance of safety equipment installed on the vehicle in compliance with applicable safety standards, including school bus sa fety standards. However, there is no prohibition against an individual owner, such as a school or school district, modifying or repairing its own vehicles.

Your third question asks for information on "the provisions in law or requirements as applicable to a vehicle alterer for both new and used buses." The Vehicle Safety Act applies to persons who perform manufacturing operations on previously certified ne w vehicles prior to the vehicles' first purchase in good faith for purposes other than resale. Such persons are considered "alterers" under our regulations (49 CFR Part 567.7) and are subject to requirements that they certify compliance with Federal moto r vehicle safety standards. Alterers who significantly affect the configuration of a new new motor vehicle previously certified to applicable safety standards must certify that the new vehicle, as altered, conforms to all applicable safety standards affe cted by the alteration in effect on the date of manufacture of the original vehicle or on the date the alterations were completed. A copy of 49 CFR Part 567.7, Requirements for persons who alter certified vehicles, is enclosed for your information.

In addition, commercial parties involved with modifying new or used vehicles are subject also to the "render inoperative" prohibitions of S108(a)(2)(A) of the Vehicle Safety Act. Violations of S108(a)(2)(A) are punishable by civil penalties of up to $1,0 00 per violation.

As discussed above, we issued a second set of "regulations" for school buses under the Highway Safety Act. These regulations, which are more in the nature of guidelines, comprise Highway Safety Program Standard No. 17, Pupil Transportation Safety (copy e nclosed), one of a series of highway safety program standards relating to Federal funding of state highway safety programs. Program Standard No. 17 contains recommendations from NHTSA for the pupil transportation aspect of state highway safety programs a nd addresses school bus maintenance and inspection programs. For more information about New Mexico's implementation of these highway safety program standards, you should contact:

Mr. Bill G. Loshbough Director of School Transportation 209 State Education Building Santa Fe, NM 87501-2786 (505) 827-6640

I hope this information is helpful. For your future reference, I have also enclosed information on how you can obtain copies of your safety standards and any other NHTSA regulation. Please contact my office if you have any further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

Ms. Erika Z. Jones Chief Counsel National Highway Traffic Safety Administration 400 7th Street, SW Washington, DC 20590 Dear Ms. Jones:

Following a phone conversation with Steve Ash of your office on February 19, I am formally requesting copies of pertinent provisions in law or information relative to the following areas:

1, The formal DOT certification process for new school buses, and the periodic NHTSA testing process.

2. The requirements of the anti-tampering provision as applicable to dealers or any other motor vehicle repair business which may repair buses.

3. The provisions in law or requirements as applicable to a vehicle alterer for both new and used buses.

The areas in which we are seeking information is specifically targeted at public school buses which are used to transport pupils to and from school or school sponsored activities.

Our interest is to provide the correct information to school districts and school bus contractors in New Mexico to ensure that both state and federal regulations are being complied with. We are also working closely with the newly formed New Mexico Public School Insurance Authority under whose jurisdiction school buses involved in accidents are being repaired.

We are also attempting to strengthen our bi-annual spot inspection to insure that no safety equipment or features on school buses are being rendered inoperative or inadequately being repaired, which could subsequently cause injury.

Any information relative to the above items would be greatly appreciated. If you have any questions relative to this request, you can contact me in Santa Fe, New Mexico, area code (505) 827-6640.

Sincerely,

MIKE L. YONKER Administrative Assistant

ID: nht71-1.48

DATE: 01/20/71

FROM: R.A. DIAZ -- NHTSA; SIGNATURE BY HAROLD M. JACKLIN

TO: Bus and Truck Supply Co.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of December 30, 1970, requesting an interpretation of Motor Vehicle Safety Standard No. 205, "Glazing Materials," as it applies to the forward-facing window above the windshield of a particular bus, a picture of which you enclosed.

Because the window in question is a forward-facing window, we cannot conclude that it is an "opening in the roof" under the standard. We apologize for the inconvenience caused by any implication to the contrary that you may have been given on your visit here.

Based upon the picture submitted, and your statement that the window "is not adjacent to passenger seating," we conclude that this location is one that is not specifically designated by the standard. As such, the use of AS2 glazing, which you indicated you plan to use, or alternatively AS1, AS3, AS10, or AS11 glazing, would be appropriate.

If you have further questions, we will be happy to answer them for you.

ID: nht88-3.59

TYPE: INTERPRETATION-NHTSA

DATE: SEPTEMBER 27, 1988

FROM: CLARK, TRACY L. JR. -- COTTLE INDUSTRIES VICE PRESIDENT

TO: ERICA JONES -- CHIEF COUNSEL-NHTSA

TITLE: NONE

ATTACHMT: DECEMBER 19, 1988 LETTER FROM JONES TO CLARK

TEXT: We are finalizing arrangements to produce a three-wheeled gasoline-powered vehicle. The vehicle will be classified as either a moped or a motorcycle depending on choice of engine size.

In reviewing sections 566-568 of the Federal Motor Vehicle Safety Standards and Regulations, it appeared that we should be classified as an alterer. I wanted to confirm this, so I contacted your organization directly. I discussed our classification by phone with Ms. Dorothy Nakoma of your offices. She believes that we should indeed be registered as an 'alterer of a certified vehicle'. She also suggested that we write to you and get a written opinion confirming the correct classification.

I have enclosed a brochure which highlights the basic description of the vehicle. The production process goes as follows:

1) We purchase a completed, certified Honda moped.

2) We then remove the plastic body shell and seating components.

3) Next, the frame is cut behind the steering column, separating the Honda vehicle into two sections.

4) The front section is welded to the tubular steel frame.

5) The rear section is welded to the tubular steel frame.

6) A third wheel assembly added to the frame.

7) Wiring is completed and the fiberglass body shell is installed.

The Honda front end and drive train components continue to retain their integrity.

We intend to issue a new Certificate of origin for each vehicle, but would continue to use Honda's VIN number as identification. Please confirm this procedure.

Several states make no provision for classifying alterers. Their categories are limited to manufacturers and franchised dealers or distributors. We will register as a manufacturer in these states.

If you have any questions, or require further information, please do not hesitate to contact me. Thank you for your time and consideration on this issue. We look forward to your response.

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Today, through a special agreement with Special Vehicle Designs, Cottle Industries, Inc., has the exclusive rights to manufacture and market the CHARIOT in the U.S. and Canada.

The CHARIOT/Mobility Vehicle At A Glance

* Welded steel safety chassis * Safety locks

* Gasoline-powered

* 70 miles per gallon

* One gallon gas tank

* Three wheels

* Dimensions: 72" long, 52" wide, 40" high

* Total weight: 270 pounds

* 49 cc two-stroke engine

* Electric ignition

* Automatic transmission

* Steel wheels

* 2.75 x 10-inch tires

* Independent suspension with hydraulic damper

* 12-volt battery

Options for the CHARIOT

* wind screen

* custom colors

* 80 cc engine (licensed as a motorcycle, speeds of up to 45 m.p.h.)

About Cottle Industries

Cottle Industries, Inc., researches, develops, manufacturers, and markets devices that help disabled people lead more productive, independent, and fulfilling lives. Our product line includes the CHARIOT and other fourth-generation mobility vehicles that overcome many of the limitations of conventional wheelchairs.

We are committed to excellence. To this end, we conduct extensive research to apply technological innovations to our products. We offer a complete sales and after-sales support service to ensure customer satisfaction. All complaints are handled direct ly by us, not by our dealers. This direct approach makes for better quality control and service.

Cottle Industries, Inc. P.O. Box 1165 Fairfield, Iowa 52556

Call Your Local Dealer Today To find out more about the CHARIOT, call your local dealer today or phone Cottle Industries at 515/472-7281 directly for the name of the dealer closest to you.

Cottle Industries recommends wearing a safety helmet when operating the CHARIOT.

ID: 17730.drn

Terry L. Voy, Consultant
School Transportation
Iowa Department of Education
Grimes State Office Building
Des Moines, IA 50319

Dear Mr. Voy:

This responds to your request for an interpretation regarding the use of 12 to15-passenger vans by child day care providers to drop off and pick up school children from school. You asked three questions, which are addressed below:

Question 1. Do the federal motor vehicle safety regulations relating to the sale and lease of school buses apply to vehicles [new buses] sold or leased to publicly or privately owned day care facilities who use these vehicles to transport school-aged children to and from school as a part of their day care services?

As explained below, the answer depends on whether the new buses will be "significantly" used to transport school children "to or from" school or related events. If the bus will be used for such purpose, a school bus must be sold, regardless of whether such transportation is provided by a school or a day care facility.

The National Highway Traffic Safety Administration (NHTSA) has the authority to regulate the first sale or lease of a new vehicle by a dealer. 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. Under our regulations, a "bus" is any vehicle, including a van, that has a seating capacity of 11 persons or more. Our statute defines a "school bus" as any bus which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events (emphasis added). 49 U.S.C. 30125. A 12 to15-passenger van that is likely to be used significantly to transport students is a "school bus."

If the new bus is sold or leased to transport students (e.g., leased on a regular or long-term basis), it is a "school bus" and must meet NHTSA's school bus standards. Conventional 12 to15-passenger vans are not certified as doing so, and thus cannot be sold or leased, as new vehicles, to carry students on a regular basis.

Whether the buses are "used significantly" to transport the students is an issue that the agency finds appropriate to resolve case-by-case, focusing on the intended use of the vehicle. In a June 1, 1998, letter to Cox Chevrolet (copy enclosed), we addressed the situation where students were being picked up from school "five days a week." In that letter, we stated: "In our view, such regular use of the vehicle to pick up students 'from school' (even if the same students are not transported each day), would constitute a 'significant' use of the vehicle." We also informed the dealer that when it leases new buses to the dance studio for use in transporting students "from school," it must lease buses that meet the Federal school bus standards.⁽¹⁾ We also believe that regular use on alternate days would be "significant."

The requirements for the use of a motor vehicle are determined by State law, so requirements of each State should be consulted to determine how students must be transported to and from school or school-related activities. In addition, NHTSA believes that school buses are one of the safest forms of transportation in this country, and therefore strongly recommends that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 12 to15-passenger vans that do not meet the school bus standards to transport students could result in increased liability in the event of a crash.

Question 2. If your response to question #1 above is in the affirmative, does the use of a vehicle owned or leased and operated by a day care provider for to and from transportation constitute "significant use" as the phrase is used in the statutory definition of a school bus?

I believe we answered this in response to Question 1. We may consider use of the bus for pupil transportation "significant" under our school bus regulations, even if the provider is a day care facility.

Question 3. If questions #1 and #2 above are answered in the affirmative, do the same federal sanctions apply to dealers who sell or lease vehicles of [more than 10] capacity to day care providers for to and from school transportation purposes?

The answer is yes, a dealer that sells or leases a noncomplying vehicle to a day care facility in violation of 49 U.S.C. Section 30112, would be subject to the same penalties that a dealer would face when selling noncomplying vehicles to a school. NHTSA's regulations at 49 CFR 578.6, Civil penalties for violations of specified provisions of Title 49 of the United States Code, subsection (a) states:

(a) Motor Vehicle Safety. A person that violates any of sections 30112 ... is liable to the United States Government for a civil penalty of not more than $1,100 for each violation. A separate violation occurs for each motor vehicle or item of motor vehicle equipment and for each failure or refusal to allow or perform an act required by any of those sections. The maximum civil penalty under this paragraph for a related series of violations is $880,000.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA#571.3 "school bus only"
d.8/3/98

1. As you may be aware, in interpretation letters of May 29, 1991 and September 6, 1991 to Ms. Vel McCaslin, Director of Grace After School, an after school care program, NHTSA stated that buses used to transport children to Ms. McCaslin's program would be "school buses" only if the program is a "school or school-related event." The September 1991 letter indicated that the program picks up children from three area schools and brings them to the church on a "daily" basis. These letters concluded that Grace After School did not appear to be a "school," that the program was not a "school-related event" and that NHTSA's school bus requirements thus did not apply. NHTSA has recently reexamined the two letters to Ms. McCaslin. Upon reconsideration, we have decided that the letters did not focus enough on the fact that the buses were being used to transport school children "from school," as specified in 49 U.S.C. 30125. Therefore, to the extent the May 29, 1991 and September 6, 1991 letters to Ms. McCaslin are inconsistent with this letter, they are hereby superceded.

ID: nht87-1.35

TYPE: INTERPRETATION-NHTSA

DATE: 02/20/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Butler Derrick -- U.S. House of Representatives

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/22/79 letter from Frank Berndt to Sterling Troxel; 12/29/77 letter from Joseph J. Levin to Kentucy Dept. of Education; 10/5/78 letter from Joseph J. Levin to Charles B. Honeycutt

TEXT:

Thank you for your letter to Secretary Dole enclosing correspondence from your constituent, Mr. George Seaborn of the South Carolina Association of School Superintendents, concerning Federal regulations for school buses. Your letter has been referred to my office for reply, since the National Highway Traffic Safety Administration is responsible for administering Federal programs relating to school bus safety.

In his letter to you, Mr. Seaborn expresses his concern about a Federal regulation that "excludes the use of vans capable of transporting more than 10 persons from use by schools." Mr. Seaborn explains that it would be difficult for school districts to c omply with a restriction on van use since large vans are extensively used for pupil transportation. He believes that schools should be permitted to use vans since those vehicles are safe for transporting passengers other than school children.

I appreciate this opportunity to clarify our school bus regulations. As explained below, there is no Federal prohibition directed against schools or school districts which prevents them from using vans carrying 11 or more persons. Federal law does, howev er, affect the sale of buses to schools. NHTSA has the authority, under the National Traffic and Motor Vehicle Safety Act, to regulate the manufacture and sale of new motor vehicles. In 1974, Congress enacted the Schoolbus and Motor Vehicle Safety Amendm ents to direct NHTSA to issue motor vehicle safety standards on specific aspects of school bus safety and apply those standards to all "school buses." The school bus standards we issued became effective April 1, 1977, and apply to each school bus manufac tured on or after that date.

The parties subject to the Vehicle Safety Act are the manufacturers and sellers of new school buses. The Vehicle Safety Act requires each person selling a new "school bus" to ensure that the bus complies with our school bus safety standards. Under Federa l law, a van designed for 11 or more persons (driver included) is a "bus," and is a "school bus" if intended for transporting students to and from school or related events. A person way sell a new bus (including a van designed to carry 11 or more persons ) to a school or school district provided that the vehicle meets our motor vehicle safety standards for school buses.

Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit school districts from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. Mat ters relating to motor vehicle use are determined by state law. However, in the event a South Carolina school district decides to buy a new school bus, we would like the district to keep in mind that the seller would be obligated under the Vehicle Safety Act to sell complying school buses. The seller should ' know that he or she risks substantial penalties if a noncomplying bus is sold as a school bus.

Since Mr. Seaborn is interested in transporting students in vans, I would like to clarify a few additional matters concerning our school bus regulations. In his letter to you, your constituent expresses a belief that large vans (i.e ., buses) should be s afe for school children since they are safe for other passengers. The legislative history of the Schoolbus Amendments of 1974 indicate that Congress believed that special measures should be taken to protect school children who use school bus transportati on. Fifteen-passenger vans (i. e., buses) meeting our school bus safety standards provide more safety features than other buses. School buses must meet stringent performance requirements, including those for interior protection, fuel systems, emergency e xits, windows and windshields and seating systems.

New 15-passenger vans, conforming to our school bus standards, may be sold to school districts to transport their pupils to school related events. School districts nay also purchase 9-passenger vans for school transportation, because such vans are consid ered "multipurpose passenger vehicles" (MPV's) and not "buses" or "school buses" under Federal law. We do not prohibit the sale of MPV's to carry school children nor do we require them to comply with Federal school bus safety standards. Instead, they mus t meet the performance requirements set by the safety standards for MPV's, which also provide high levels of passenger safety.

I hope this information is helpful. We have provided a similar letter to Congressman Robin Tallon who contacted us on behalf of Mr. Seaborn. Please let us know if we can be of further assistance to you and your constituents.

Sincerely,

Erika Z. Jones Chief Counsel

The Honorable Elizabeth H.Dole Secretary of Transportation U.S. Department of Transportation 400 7th Street, SW Washington, D.C. 20590

Dear Secretary Dole:

Enclosed please find a copy of a letter I received from Mr. George W. Seaborn, President, South Carolina Association of School Superintendents. It concerns the Department of National Highway Safety Administration's standards which exclude the use of vans capable of transporting more than ten persons from use by schools.

I would sincerely appreciate the appropriate member of your staff reviewing this matter. Please provide me a response that I may share with Mr. Seaborn.

Thanking you in advance for your cooperation, I am

Respectfully

BUTLER DERRICK MEMBER of Congress

D/cm

Congressman Butler C. Derrick, Jr. P. O. Box 4126 Anderson, SC 29622

Dear Congressman Derrick:

You will see from the enclosed material that in 1977, the Department of National Highway Safety adopted a standard which excludes the use of vans capable of transporting more than ten persons from use by schools. None of the administrators in South Carol ina were aware of this legislation until recently. I am sure that you know that there are hundreds of these vans being operated by South Carolina school districts and many thousands more by school districts across our land. We have three in our school di strict which belong to the state and are furnished to us for the purpose of transporting children to our child development program. We also have our own vans which are used to transport small groups such as golf team, cheerleaders, etc.

All of these vans were legally purchased on the open market in South Carolina. It seems to me that if these vehicles are unsafe to transport youngsters then they are unsafe to transport any citizens in our nation. On the other hand, if they are considere d safe to transport citizens in this country who are not school students, they should be safe to transport school students. This regulation implies that certain classes of our citizens are entitled to higher safety standards than other classes.

I have been asked by my colleagues throughout the state to urge your immediate attention to this matter as all it is doing at the present time is creating additional liability for our schools systems. There is no way I can tell the parents for instance i n our child development program that we can no longer transport their children to their child development classes. I respectfully await your prompt action concerning this matter.

Sincerely,

George W. Seaborn, President South Carolina Association of School Superintendents

November 17, 1986

MEMORANDUM TO: AREA, COUNTY AND DISTRICT SUPERINTENDENTS OF EDUCATION

FROM: H. G. HOLLINGSWORTH, JR., DEPUTY SUPERINTENDENT DIVISION OF FINANCE AND OPERATIONS

SUBJECT: SPECIFICATIONS FOR SCHOOL VANS

The Department of Education has been asked to clarify the use of vans owned by school districts as it relates to transporting school children to various school activities.

The. U. S. Department of Transportation, National Highway Traffic Safety Administration, adopted safety standards effective April 1, 1977, which applies to vans transporting school children. The standard requires any vehicle manufactured on or after Apri l 1, 1977, designed to carry more than 10 persons and which is sold to transport school children to or from school or related events must comply with all of the school bus safety standards. It should be noted that vehicles must comply with the standards regardless of the number of students being transported in the vehicle.

For a school district to modify a van purchased after 1977 to meet the standards, would, in our opinion, be cost prohibitive, inasmuch as the standards would require so many changes in the body construction such as tank protection, overhead strength, sea ts, etc.

Attached for your information are copies of letters addressed to individuals in other states from the U. S. Department of Transportation in regard to the above referred to subject.

HGH,Jr :gb Enclosures

See letters from NHTSA to Sterling Troxel, Charles B. Honeycutt and Kentucky Dept. of Education

ID: nht87-2.68

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Troy C. Martin

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Troy C. Martin Specification/Inspections Chief Texas State Purchasing and General Services Commission P.O. BOX 13047 Capitol Building Austin, TX 78711-3047

Dear Mr. Martin:

This is in response to your letter of February 25, 1987, concerning the regulations applicable to buses used by State Schools to transport children to non-school related activities. You have asked us to address this question for each type of State School , some of which are not "schools" at all, and for public and private schools generally.

In beginning my answer, I want to stress the distinction between the State and Federal regulation of school buses. The question of what bus to use for a particular trip is a question of State regulation. Although there are federal guidelines for school b us use, these are not binding on the States and Hill not be discussed in this letter. The question of what bus nay be sold for transporting children is a matter of Federal regulation. It is this question that we can answer.

A "school bus" is defined by the National Traffic and Motor Vehicle Safety Act in terms of its anticipated use. A bus is thus a "school bus" if the Secretary of Transportation determines it is likely to be significantly used for the purpose of transporti ng primary, preprimary, or secondary school students to or from such schools or events related to such schools.

A person who sells a new bus that Hill be "significantly used" for the purposes listed in the school bus definition must ensure that the bus meets- the Federal motor vehicle safety standards applicable to school buses. Selling a nonconforming bus for sch ool bus use will subject the seller to a civil penalty of up to 000 for each vehicle and up to $800,000 for a related series of violations. The question of the bus's use is thus of considerable consequence both to the seller and to the buyer.

As you describe the State Schools in Texas, each type of School provides 24-hour residential care for children but offers a differing degree of educational service. One type is certified as a school district and provides instruction on campus, a second t ype is certified as a school district but offers no instruction, and a third is neither certified nor equipped for instruction. In purchasing a new bus for any of the three types of State School, you would need to ask the same question: Is the bus going to be "significantly used" to transport students to and from school or school-related events? If it will be used in this fashion, it will have to be certified as conforming to the school bus safety standards.

I can visualize circumstances under which a bus purchased for any of the three types of State School would have to be certified. The first type is a bona-fide school, so that any use of a bus to transport children to or from the School would be a trip "t o or from" school within the school bus definition of the Vehicle Safety Act. We expect that any new bus sold for use in this type of School would be certified as a school bus.

The second type of State School, though certified as a school district, offers no instruction. We would not consider either this type or the third type to be a "school," which we define as an institution for the instruction of children at the preprimary, primary, or secondary level. A new bus purchased for the use of one of these types of State School, and used for no other school transportation' would not have to be certified as a school bus. However, if the bus were to be purchased for the purpose of transporting children from the State School to local public or parochial schools on a regular basis, we would consider it to be "significantly used" for that purpose, even though it might also be used for other transportation unrelated to school.

A new bus sold for the use of a bona fide school, whether public or private, will almost invariably be required to be certified. Although a bus might conceivably be purchased by a school for the sole use of school employees, such a restriction would be r are. We would expect that virtually all buses purchased by a school would be required to be certified to the school bus standards.

Since the certified school bus has been shown to be the safest vehicle for children, we strongly endorse the use of a certified bus to transport children for any purpose, whether or not school-related. However, our regulatory authority extends only to th e manufacture and sale of new buses, not to their use for a particular trip. For those trips for which a school considers using a noncertified bus, we suggest that you review the Texas regulations on the use of school buses.

I hope this information is helpful. Please contact us if you have further questions.

Sincerely, Original Signed By Erika Z. Jones Chief Counsel

February 25, 1987 Ms. Erika Z. Jones, Chief Counsel Room 5219 National Highway traffic Safety Administration 400 7th Street NW Washington, D.C. 20590

Dear Ms. Jones:

He have in the State or Texas certain Institutions called State Schools which may or may not educate students on their campuses (but these Institutions have, responsibility for 24-hr care of the children living there). There arises questions concerning whether or not the vehicles used to transport ten or more or these children to non-school related activities must be certified as school buses. I understand that the transporting or school children to and from school and to and from school related events such as activity trips require vehicles certified as school buses if the vehicle is equipped with ten or more passenger seats. What is unclear to me is what is considered school-related. I would appreciate your answering the following questions so that we can advise these institutions about transporting children:

1. Is an Institution such as a State School required to use a vehicle which is certified as a school bus to carry ten or more passengers to events not related to the public school activities (such as shopping trips downtown to purchase clothing, etc., tr ips to the local parks and playgrounds for entertaining the children, out-of-town trips such as a trip to the State Capital, etc.), if

a) the Institution is certified by the State or Texas as a school district, they teach children on their campus, and in all ways are considered as a school.

b) the Institution is certified by the State of Texas as a school district, however, they do not teach students on campus (their students go to the local public schools).

c) the Institution is not certified by the State or Texas as a school district, they do not teach students on campus, and the children living there attend the local public school, however, the Institution is called a State School.

2. Is a bona fide school, either public or private, required to use certified school buses to transport students to and from activities not related to school activities? For example, if the city government (or Institutional leaders) decided it would be a good idea to take all (or some) of the school children in one city (or an Institution) to a zoo in a nearby city; and this event was not coordinated with school officials; and the school officials were not involved in the project? or, another example, t he Superintendent of a private school decides to transport all of their students to a church activity in a nearby city.

I suppose, that the answers to the above questions and others that crop up from time to time about transporting children, really lies in the definitions of two terms: schools and school related. I would appreciate it, if in your reply you would give the federal definition of these two terms, and expand on them by giving some examples of what is and what is not a school, school related, etc. It would be very helpful to us.

Sincerely yours, Troy C. Martin Specification/Inspections Chief cc: Mr. Tommy Crowe

ID: nht93-4.24

DATE: June 4, 1993

FROM: James G. O'Neill

TO: D. Fujida -- Office of Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8/5/93 from John Womack (signature by Kenneth N. Weinstein) to James G. O'Neill (A41; Std. 213)

TEXT:

I was directed to your office by Mr. Dick Jasinski of the equipment branch of safety compliance.

I am manufacturing a product that will be attached to a child's car seat. I would like to know if there are any N.H.T.S.A. requirements the product must meet.

The sketch will give you an idea of its function.

Attachment

Sketch omitted.