ID: 19914.drn

Matt Boley, Executive Director
Mary J. Treglia Community House
900 Jennings St.
Sioux City, IA 51105

Dear Mr. Boley:

This responds to your request for information regarding transportation of school children from school to your facility and during the school day. You write that, in addition to providing services for school children, you offer adult programs such as English as a Second Language and Citizenship classes, as well as senior citizen and health outreach programs. In a telephone conversation with Dorothy Nakama of my staff, you stated that you regularly provide transportation from school for the school children and that you are using 15-person vans to transport both the adults in your program and the children.

Some background information would be helpful in answering your question. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

In recent interpretation letters to NHTSA, the agency was asked to address situations where non-educational institutions (such as day care centers) are procuring buses to transport children to or from schools. When a day care center will be using a bus to transport school children "to or from school" or school-related activities on a regular (non-occasional) basis, the dealer who sells or leases the new bus to the center must sell or lease a "school bus." These may include van-based vehicles, completed by school bus manufacturers, that are certified to those standards. In contrast, if a day care center will not use the new bus to take children to or from school or school-related activities, the dealer is not required to sell or lease a school bus.

One of those letters involved a dealer selling a new 15-passenger van to a child care facility which planned to significantly use the van for school transportation. The letter is dated July 23, 1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explained that a dealer selling or leasing a new van for such use must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.⁽¹⁾

Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit centers from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Iowa law to see if there are regulations about how your center must transport school children.

Further, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." If you have any further questions please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3 "school bus only"
d.6/10/99

1. Again, please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that are not significantly involved in transporting school aged children "to or from" school. The Cote letter could affect the facility if it is involved in transporting children to or from school.

ID: 1991y

Mr. Terry Hudyma
Vice President, Engineering
LAFORZA Automobiles, Inc.
3860 Bay Center Place
Hayward, CA 94545

Dear Mr. Hudyma:

Thank you for your letter requesting an interpretation of 49 CFR Part 567, Certification. Specifically, you asked about certification requirements for multipurpose passenger vehicles that will be assembled in Italy and in Michigan. I apologize for the delay in this response. The vehicles in question will be assembled in Italy to the extent that they will be "complete with everything except the engine (and associated equipment such as ignition and air conditioning, etc.), transmission and transfer case in Italy." These assemblies will then be imported into the United States where the vehicles will be completed. You state that both the operations in Italy and in Michigan will be performed pursuant to a contract with LAFORZA, who will have "complete control over the manufacturing process at all times."

It is your understanding that in the fact situation described above, LAFORZA is considered to be the manufacturer of the vehicle and therefore LAFORZA is responsible for affixing the certification label on the completed motor vehicle pursuant to 49 CFR Part 567. You asked us to confirm this interpretation. We cannot do so. Under our law and regulations, the company that completes the vehicles in Michigan is a "manufacturer" of the vehicles in question. The information provided in your letter is inadequate to allow us to determine whether LAFORZA might also be considered a "manufacturer" of these vehicles.

The first issue to be addressed in our analysis is whether the products in question are "incomplete vehicles" when they arrive in the United States. An "incomplete vehicle" is defined at 49 CFR 568.3 as:

... an assemblage consisting, as a minimum, of frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

Your letter states that the products that arrive in the United States will not have an engine or transmission, which means they will not have a power train. Accordingly, 568.3 makes clear that these products would not be "incomplete vehicles" for the purposes of our regulations. In previous interpretations, we have referred to products that do not qualify as "incomplete vehicles" as an "assemblage of items of motor vehicle equipment". In those previous letters, we have stated that the assemblage should be labeled as items of motor vehicle equipment for importation into the United States and that the importer of the assemblage must certify that each item of motor vehicle equipment that is covered by a Federal motor vehicle safety standard complies with such standard. See the enclosed May 6, 1985 letter to Mr. Hayley Alexander.

This finding also means that the Italian company that produces these "assemblages of items of motor vehicle equipment" is not a "manufacturer" of motor vehicles with respect to the vehicles in question. Section 102(5) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391(5); the Safety Act) defines a "manufacturer" as "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." In this case, the Italian company producing the assemblage of items of motor vehicle equipment has not manufactured or assembled any motor vehicles, nor has it imported any motor vehicles. Hence, it does not fit the statutory definition of a "manufacturer" of the vehicles in question.

After these assemblages are imported into the United States, the operations performed by the Michigan company will transform the items of motor vehicle equipment into a motor vehicle. Therefore, the Michigan company would be a "manufacturer" of these vehicles for the purposes of the Safety Act and our regulations. Since 567.4(g)(1) requires the certification label to include the name of the manufacturer, the vehicles could comply if the name of the Michigan company were shown on the certification label.

The information in your letter was inadequate to allow us to make even a tentative determination of whether LAFORZA may also be considered a manufacturer of these vehicles. The agency discussed the issue of vehicles with more than one "manufacturer" at length in its proposal to establish rules of attribution for determining which of the manufacturers would be responsible for complying with the phase-in requirements in Standard No. 208, Occupant Crash Protection (49 CFR 571.208). In that proposal, NHTSA said:

Since the National Traffic and Motor Vehicle Safety Act places the responsibility of compliance with safety standards on manufacturers, the agency does not have authority to attribute a vehicle to a party other than one of the vehicle's manufacturers. However, the agency considers the language in section 102(5) of the Vehicle Safety Act that a manufacturer is "any person engaged in the manufacturing or assembling of motor vehicles . . ." to be sufficiently broad to include sponsors, depending on the circumstances. For example, if a sponsor contracts for another manufacturer to produce a design exclusively for the sponsor, the sponsor may be considered the manufacturer. This follows from application of basic principles of agency law. In this case, the sponsor is the principal. On the other hand, the mere purchase of vehicles for resale by a company which also is a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles. 50 FR 14589, at 14596; April 12, 1985.

According to your letter, LAFORZA has a contractual relationship with the company in Italy that is producing the assemblage of items of motor vehicle equipment and a contractual relationship with the company in Michigan that is assembling the motor vehicle. These contractual relationships led you to assert that "... LAFORZA Automobiles will have complete control of the manufacturing process at all times." If LAFORZA merely has contractual relationships under which it purchases products for resale from the companies in Italy and Michigan, LAFORZA would not be considered the manufacturer of those vehicles. If you can provide us with information about any role LAFORZA has in producing these vehicles besides contracting with other companies to assemble the vehicles, we will review that information and offer our interpretation of whether LAFORZA could be considered a "manufacturer" of these vehicles for the purposes of the Safety Act and our regulations.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

cc: Mr. Hans W. Metzger LAFORZA Safety Consultant 6323 E. Turquoise Avenue Scottsdale, Arizona 85253

ref:567#568 d:9/7/89

ID: 1992y

Commander
U.S. Army Missile Command
(Mr. Bob Bergman)
ATTN: AMCPM-FM-TM
Redstone Arsenal, Alabama 35898-5793

Dear Commander:

This is in reply to a letter of August 7, l989, from Jerry L. Dooley, Deputy Project Manager, Non-Line of Sight, with respect to "safety standards of the military nature", in particular those that would apply to the M1037 High Mobility Multipurpose Wheel Vehicle (HMMWV), as well as the M993 Bradley Fighting Vehicle System (BFVS).

This agency has jurisdiction over all motor vehicles, defined as vehicles driven or drawn by mechanical power which are manufactured primarily for use on the public roads. Our principal role is the issuance of the Federal motor vehicle safety standards, and the monitoring of the notification and remedial campaigns of manufacturers upon the occurrence of noncompliances with the standards, or safety related defects in vehicles. We have never issued safety standards for military vehicles. Quite the opposite; although we interpret our authority as covering military vehicles, the agency has always specifically exempted from compliance with the standards any motor vehicles manufactured for, and sold directly to, the Armed Forces of the United States in accordance with contractual specifications.

Frequently, military contracts for procurement of vehicles will call for their conformance with the Federal safety standards, when the nature of the vehicle is such (e.g. passenger car, bus) that conformance with the standards is not inconsistent with the configuration required to accomplish their mission. None of our safety standards for civilian vehicles cover driver field of view, basic visibility requirements, or ingress/egress. Our glazing standard does specify minimum levels of light transmittance, and our rearview mirror standard covers rear view mirror placement and rearward field of view. I am enclosing copies of these standards for your information.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures - Standards Nos. lll, 205

ref: 571.7 d:9/7/89

ID: 1993y

Mr. Taylor Hong
President, Fair Sun Industrial Co., Ltd.
P.O. Box 36-570
Taipei, Taiwan

Dear Mr. Hong:

This is in reply to your letter with reference to motor vehicle flashers that you wish to sell in the United States.

You have asked the following questions:

l. "How do we get DOT approval?" 2. "Should ask for an application forms from you and sent one lot of samples for your test?"

The Department has no authority to "approve" flashers, and no laboratory of its own in which it tests them. Under our law, the National Traffic and Motor Vehicle Safety Act, the manufacturer of the flashers, not the Department, determines in the first instance whether or not they comply with the SAE materials incorporated into Federal Motor Vehicle Safety Standard No. l08. If the manufacturer is convinced that they comply, it certifies that the flashers meet Standard No. l08, either with a statement on the container in which the flashers are shipped, a tag attached to each flasher, or a DOT symbol on the flasher itself. From time to time, the Department buys flashers for testing. In this manner, the Department has discovered that a number of those manufactured in Taiwan have not met Federal requirements, and lacked the required certification. In some instances, civil penalties have been imposed against the manufacturer or importer of the flashers.

3. "We may send samples to any other Laboratory and get an approval?"

To aid you in reaching a conclusion whether the flashers are designed to conform with Standard No. 108, you may send samples to any test laboratory you wish. Although the standard deems a flasher compliant if not less than 17 of 20 flashers tested meet the requirements, we caution you that you should not accept such a result as a guarantor of compliance. Because of the tolerances involved in production of flashers, we believe that a manufacturer wishing to ensure that at least 17 of 20 flashers will pass whenever the government tests them should design its flashers to achieve a higher level of compliance with durability and performance requirements than the minimum acceptable number of 17. Once a higher level is reached, a manufacturer should ensure that the flashers will continue to meet Standard No. l08 over time. Accordingly, we urge flasher manufacturers to test their products periodically as an assurance that a minimum of 17 out of every 20 continue to meet the performance and durability requirements specified.

Although you have no obligation to obtain "approval" from the Department, there are two requirements that manufacturers of flashers must meet before offering their products for sale in the U.S. You must designate an agent for service of process (49 CFR 551.45) and file an identification statement (49 CFR Part 566). I enclose a copy of these regulations for your information.

If you have any further questions we shall be pleased to answer them.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:108 d:9/l3/89

ID: 19948.ztv

Mr. Ron Dawson
4224 Quince Road
Portsmouth, VA 23703

Dear Mr. Dawson:

This is in reply to your e-mail of May 5, 1999, to Taylor Vinson of this Office, on kit cars. We had previously written you on this subject on March 29, 1999, and you have two further questions. I apologize for the delay in our response.

In our earlier letter we informed you that we would regard the person installing the engine and transmission of a kit car, whether the kit purchaser or a commercial entity, as the manufacturer of the vehicle and responsible for its compliance with the Federal motor vehicle safety standards. You cite a letter from this Office to Kent Morris, dated April 22, 1991, in which we stated that a manufacturer is any person assembling more than one motor vehicle. Your asked whether we will "consider the kit purchaser who installs an engine and transmission into a single car a manufacturer."

The answer is that the assembler of a single kit car is a "manufacturer." We have reviewed the statement you cited in our April 22, 1991 letter and concluded that it was incorrect. In other letters, we have stated that a purchaser who completes a kit is a manufacturer (see 1979 letter to the Honorable John C. Stennis) and that even if someone produces only a single motor vehicle, that vehicle must be certified to conform to all applicable Federal motor vehicle safety standards if its producer intends it to operate on the public roads (see 1997 letter to Mr. Dion A. DeVan).

You note that 49 U.S.C. 30112 states that, with certain exceptions, "a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard . . . takes effect unless the vehicle or equipment complies with the standard . . . ." I would point out that driving a vehicle on the public roads would be considered an introduction into interstate commerce. Therefore, a person who assembled a kit car which did not comply with Federal motor vehicle safety standards and then drove the vehicle on the public roads would be in violation of this section.

You also asked whether we would "enforce compliance upon a person who installs an engine and transmission in a kit car and then uses the completed motor vehicle for his/her personal highway use." If we should become aware of an apparent violation in such a situation, we would decide what action to take at that time. I would also note that, in addition to facing a potential Federal enforcement action, such a person might also be in violation of State laws. Moreover, in the event of a crash, there could be potential liability issues both for the assembler of the kit car and for the kit manufacturer. A local attorney could advise you about the laws of your state and potential liability issues.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.6/20/00

ID: 19951

Ms. Sharon Elsenbeck
Director of Support Services
Three Springs of North Carolina
P.O. Box 1370
Pittsboro, NC 27312

Dear Ms. Elsenbeck:

This responds to your April 28, 1999, letter that asks whether your residential treatment facility for "adolescents with emotional and behavioral problems" must transport its students by buses that meet the National Highway Traffic Safety Administration's (NHTSA's) school bus safety standards. You state that your residents attend an on-campus, non-public, school.

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

Our statute thus regulates primarily manufacturers and sellers of new school buses. Any person selling a new school bus must sell a vehicle that is certified as meeting our school bus standards. Conventional buses (including 15-person vans) are not certified as doing so, and thus cannot be sold, as new vehicles, under circumstances where they are likely to be used to carry students on a regular basis.

You did not describe the program of Three Springs, so we are unable to determine whether your facility is a "school" under our statute. For your information, I am enclosing an April 8, 1998, letter to Mr. Gary Hammontree, director of a residential treatment program called Starr Commonwealth. The main purpose of Starr Commonwealth was to provide psychological and therapeutic counseling to youths placed in the program by the juvenile justice system. In our letter to Mr. Hammontree, we determined that Starr Commonwealth provided services that are distinct from the academic instruction associated with a "school," and that Starr Commonwealth was therefore not a school. Accordingly, we concluded that persons selling a new bus to the facility to transport the youths to counseling-related activities, such as service projects in the community, are not required to sell a "school bus." On the other hand, Starr Commonwealth also transported some students to off-campus public schools and events related to the schools. We therefore also determined that new buses sold to regularly transport students to those schools or to school-related events are "school buses" and would have to meet Federal school bus standards.

As to whether you must use school buses, that question is answered by State law. Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit facilities from using non-school buses to transport their pupils.  Matters relating to motor vehicle use are determined by state law, so you should check North Carolina law to see what State requirements apply to your vehicles. For information on North Carolina's requirements, you can contact North Carolina's State Director of Pupil Transportation:

Mr. Derek Graham, Section Chief
North Carolina Department of Public Instruction
301 N. Wilmington St.
Raleigh, NC 27601
Telephone: (919) 715-1950

In closing, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using buses that do not meet NHTSA's school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." 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

ID: 19975-1.pja

Major P.D. McClellan
Commander
Office of Licensing and Commercial Standards
Ohio State Highway Patrol
1970 W. Broad Street
P.O. Box 182074
Columbus, OH 43218-2074

Dear Major McClellan:

This responds to your letter asking for an interpretation of Federal Motor Vehicle Safety Standard No. 217, Bus Emergency Exits and Window Retention and Release. I apologize for the delay in responding. You ask whether Ohio's school bus construction standard is in conflict with our standard as to the location of side window emergency exits. Based on our understanding of your standard, our answer is no.

You explain that your standard requires school buses with a seating capacity greater than 50 to have "two emergency swing out windows on the right and left side of the body" located in the front and rear third of the bus. Thomas Built Buses has told you that they have an interpretation letter from us stating that Standard No. 217 requires a window exit at the midpoint of the bus no matter how many exits are on each side of the bus. (Although you did not identify the letter, we believe you are referring to our August 4, 1995, letter to Ms. Jane L. Dawson of Thomas Built Buses.) You ask whether your standard may require the swing out windows in the front and rear third of the bus.

S5.2.3.1 of Standard No. 217 requires school buses to be equipped with certain numbers and types of emergency exits, at specified locations. At the school bus manufacturer's option, a school bus may either have:

(1) one rear emergency door and the additional exits described in Table 1 of the standard (S5.2.3.1(a)); or

(2) one emergency door on the vehicle's left side, a push-out rear window, and the additional exits described in the standard's Table 2 (S5.2.3.1(b)).

According to your letter, your school buses have a push-out rear window installed pursuant to S5.2.3.1(b). We gather from this that the two additional windows to which you refer are those described in Table 2, which permits manufacturers the option of installing the two window exits in lieu of a right side exit door. Our August 4, 1995, letter states that Standard No.217 does not specify a fore-aft location for a right side exit door or for window exits installed in lieu of a right side exit door. The letter states that these exit windows should be positioned fore-and-aft in the school bus so as to provide bus passengers with maximum accessibility to an emergency exit, in accordance with what is reasonable and practicable. We believe that your requirement that the two exit windows be placed on each side of the bus and in the front and rear thirds of the bus provides for appropriate accessibility. On this point, our standards are consistent.

However, there are some potential differences between our standards that we would like to highlight.

• According to your letter, your standard requires all type B-D school buses, regardless of seating capacity, to have at least two window exits. S5.2.3.1 of our standard allows buses seating less than 46 persons to have only a single rear exit door, or a left side exit door and a rear exit window, with no other exit windows.
• For buses with seating capacities between 46 and 49, your standard requires two side exit windows located at the midpoint. S5.2.3.1(a) of our standard allows an option of either two side exit windows or a left side exit door located as near as practicable to the mid-point of the passenger compartment (see Table 1 and S5.2.3.2(a)). Because a side exit window and a side exit door cannot occupy the same location, under your standard the side exit door option is essentially no longer available.
• For buses with seating capacities of 50 to 62, your standard requires four side emergency window exits, while S5.2.3.1, Tables 1 and 2 of our standard require only two.

Section 30103(b) of our statute, at 49 U.S.C. 30101 et seq., states:

when a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However,  . . . a State . . . may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by [the Federal standard].

To the extent that the Ohio requirements are different from those in Standard No. 217, their application to private school buses would be preempted. With respect to buses procured for the state's own use (including use by local school districts), the state standard is not preempted. The state standard results in no apparent reduction in the number of emergency exits and the locations appear to be reasonable and practicable.

If you have any further questions, please contact us.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:217# 205
d.5/30/00

ID: 19994.ztv

Mr. F. Barry Hennegan
General Counsel
Atlas and Reusable Launch Systems
Lockheed Martin
P.O. Box 179
Denver CO 80201-0179

Re: SS-99-10099

Dear Mr. Hennegan:

This is in reply to your letter of May 3, 1999, to the Office of Chief Counsel, National Highway Traffic Safety Administration, "regarding possible exemptions from certain of the requirements of 49 C.F.R. Sections 571.121 and 393.52" with respect to two trailers owned by Lockheed Martin.

The Office of Motor Carrier Safety, Department of Transportation, enforces 49 CFR 393.52. I am forwarding a copy of your letter to that Office for its response to you on this issue.

In brief, Lockheed Martin is the owner of two trailers manufactured for it by Martinez and Turek of Riato, California. These trailers were manufactured to your specifications, which included compliance with Federal Motor Vehicle Safety Standard No. 121, Air brake systems. The trailers also feature steerable rear wheels mounted on a removable bogie assembly. You inform us that "after completion of acceptance and road testing of both trailers, it appears that neither will fully meet Section 571.121, Paragraphs S5.3.3 Brake actuation Time and S5.3.4 Brake Release time."

However, you note that S3(a) of Standard No. 121 excludes trailers which exceed 102.36 inches in width and which are "equipped with two short track axles in a line across the width of the trailer." Your trailers are wider than this but don't meet the axle specification. Nevertheless, you believe that the intent of this exception is "not to have the requirements apply to oversize, slow, or specialty trailers such as ours." Accordingly, you ask that we exempt your trailers from S5.3.3 and S5.3.4 of Standard No. 121.

I am sorry to inform you that we have no authority to exempt these trailers from Standard No. 121 under the circumstances that you relate. Because they are not equipped with two short track axles across their width, the trailers do not qualify for the exclusion from Standard No. 121 provided by S3(a). The trailers, then, were required by 49 U.S.C. 30112(a) to comply with all applicable Federal motor vehicle safety standards, and to be certified by their manufacturer as conforming to those standards.

We have authority to exempt trailers from Standard No. 121 at any point up to and including their first sale for purposes other than resale, upon application by their manufacturer (49 U.S.C. 30113). Given the fact that these trailers are already owned by Lockheed Martin, it is too late for their manufacturer, Martinez and Turek, to apply for an exemption.

When either we determine, or a manufacturer determines, that a motor vehicle fails to comply with a Federal motor vehicle safety standard, the manufacturer is required to notify us and its dealers and purchasers, and to remedy the noncompliance (49 U.S.C. 30118-30120, as implemented by 49 CFR Parts 573 and 577). However, if the manufacturer believes that the noncompliance is inconsequential to motor vehicle safety, it may petition us for a decision to that effect. If we grant the petition, the manufacturer is relieved of its statutory obligation to notify and remedy (49 U.S.C. 30118(d) and 30120(h), as implemented by 49 CFR Part 556).

Therefore, if the manufacturer, Martinez and Turek, agrees that Lockheed Martin's trailers fail to comply with S5.3.3 and S5.3.4 of Standard No. 121, the company is required, at a minimum, to notify us in the manner prescribed in 49 CFR Part 573. Within 30 days of notifying us, it may also submit an inconsequentiality petition with us under 49 CFR Part 556. In this particular instance, the manufacturer might want to discuss, as part of such a petition, whether this vehicle is operated only under special permit and with escort vehicles. If it does not file a petition (or if the petition is denied), it is required to remedy the noncompliance.

Although you did not address the issue, under our interpretations, the removable bogie assembly appears to be a trailer, and subject to compliance with Federal requirements. You state that the auxiliary axle was added after delivery of the trailers to ensure that the vehicles, when in use, would not exceed the maximum Colorado allowable rear wheel road loading for tandem axle trailers. A bogie/axle unit installed as part of a trailer's original equipment is considered to be part of the trailer itself, and covered by its manufacturer's certification and the trailer's VIN. However, a bogie/axle unit sold and installed after the trailer has been delivered to its owner is considered a trailer, and is required to comply with Federal requirements applicable to trailers, including compliance with Federal standards, the VIN regulation, and certification by the bogie/axle manufacturer. I am enclosing a copy of a letter we furnished Jay Reese on September 25, 1996, which explains this in further detail. If the bogie/axle units installed on your two trailers do not in fact comply with Federal standards applicable to trailers, the bogie manufacturer is subject to the same notification, recall, and inconsequentiality procedures discussed in the preceding paragraph.

If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure

cc: Martinez & Turek
Riato, CA

ref:121#573#555
d.11/9/99

ID: 20014.ztv

Mr. Joel Sacher
Director of Product Development
Italjet U.S.A.
302 Spring Street
New York NY 10013

Dear Mr. Sacher:

We have received your letter of May 11, 1999, asking for a temporary exemption for "a small number of Italjet scooters" from one requirement of Federal Motor Vehicle Safety Standard No. 123 Motorcycle Controls and Displays.

I am sorry to inform you that the petition does not meet our procedural requirements, and we request that you revise and resubmit it in accordance with the following comments. Our regulation, 49 CFR 555.5(b)(3), requires that a petition

state the full name and address of the applicant,

the nature of its organization (individual, partnership, corporation, etc.) and the name of the State or country under the laws of which it is organized.

Italjet U.S.A. appears to be petitioning on behalf of Italjet S.p.A. If our assumption is correct, please provide the identifying information for Italjet S.p.A. that the regulation requires. If Italjet U.S.A. is a wholly-owned subsidiary of Italjet S.p.A., we ask that you confirm this as well. If Italjet U.S.A. is not a wholly-owned subsidiary of Italjet S.p.A., we would like to have a copy of the authorization from Italjet S.p.A. to you to petition on its behalf.

In order that any possible exemption be limited in scope, please inform us of the model name or number of the vehicle for which you are requesting exemption.

Finally, we call your attention to 49 CFR 555.5(b)(2) which requires that temporary exemption petitions be filed in three copies; we received only one copy.

When we have this information, we shall be pleased to consider your request.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:555
d.6/3/99

ID: 20032.drn

Mr. Kevin Nugent
Fleet Sales Manager
Liberty Chevrolet
90 Bay State Road
Wakefield, MA 01880

Dear Mr. Nugent:

This responds to your request for an interpretation whether you may lease a new1999 Chevrolet 12-Passenger Express Van (Model CG1406) to a local school district, when you have a letter indicating that the "primary purpose" of the van would be for "adult education students." Under the available facts, the answer is no. If you decide to sell or lease a new bus to the school district, you must sell or lease only a bus that meets the National Highway Traffic Safety Administration's (NHTSA's) school bus standards.

By way of background, NHTSA has the authority, under 49 U.S.C. 30101 et seq. (Chapter 301 or the Act) to regulate the manufacture and sale or lease of new motor vehicles. In 1974, Congress directed 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 manufactured on or after that date.

The Act at 49 U.S.C.30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses - vehicles designed for carrying more than ten (10) persons. For example, a 12-person van that is likely to be used significantly to transport students is a "school bus."

If a new large (11 persons or more capacity) van were sold or leased to a school district and used on a regular or long-term basis to transport students, the vehicle must meet NHTSA's school bus standards. However, a one-time or very occasional rental would be permitted, on the grounds that the vehicle would not be used significantly to transport children to and from school and thus would not be a school bus.

You enclose a letter from Mr. David W. Pottle, Adult Education Co-ordinator of the Southern Berkshire Regional School District (in Sheffield, Massachusetts) that states that the "primary purpose" for the 12-passenger van lease would be for "transportation of adult education students." Although the primary purpose of the bus may be for adult education, the letter implies that the bus would have a substantial collateral use. The statement that the "primary purpose" is for the transportation of adult education students is not sufficient. For example, if the vehicle were used 51 percent of the time to transport adults and 49 percent of the time to transport students, it would still be a school bus required to meet our school bus safety standards.

For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." If you have any further questions please feel free to contact Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA#571.3
d.11/16/99