ID: 2984yy

Eric G. Hoffman, Esq.
Russell & Hoffman, Inc.
2000 NCNB Plaza
300 Convent Street
San Antonio, Texas 78205-3793

Dear Mr. Hoffman:

This responds to your letter of March 26, 1991, addressed to Mr. Harry Thompson, asking about a private school's use of "mini-vans which are designed to carry more than 10 passengers." Your letter was referred to our office for reply. You stated that the school has become aware of the National Traffic and Motor Vehicle Safety Act (Safety Act) and is concerned whether the operation of the vans is in compliance with applicable regulations under the Act. You asked a number of questions related to that concern.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. The National Highway Traffic Safety Administration (NHTSA) defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. Therefore, the vehicles refered to in your letter would be considered school buses under federal law.

The National Highway Traffic Safety Administration (NHTSA) has issued Federal motor vehicle safety standards applicable to all new school buses. These standards impose obligations on the manufacturers and sellers of new motor vehicles, not upon the subsequent users of these vehicles. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. If your client believes that they have been sold noncomplying vehicles, and that the dealer knew of their intended use, the school should contact NHTSA's Office of Vehicle Safety Compliance, at the address given above, and inform them of the apparent violation of Federal law.

Without violating any provision of Federal law, a school may use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the activities of a user of a school bus. Since the various questions you ask assume that the Safety Act regulates users of school buses, we are unable to provide specific answers to those questions. To determine whether the private school your firm represents may use noncomplying vans, you must look to state law.

I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students. I encourage the school your firm represents to give its most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref:571.3 "school bus" d:4/29/9l

ID: 2985yy

Mr. Dan P. Strauser
Manager - Research and Development
Elgin Sweeper Company
1300 W. Bartlett Road
P.O. Box 537
Elgin, IL 60121-0537

Dear Mr. Strauser:

This responds to your letter of March 25, 1991 regarding the applicability of this agency's safety standards to a number of models of Elgin and Ravo street sweepers.

In general, all vehicles classified as "motor vehicles" are subject to safety standards. Section 102(3) of the National Traffic and Motor Vehicle Safety Act (the Act) defines the term "motor vehicle" as follows:

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

Under a longstanding policy, this agency has regarded vehicles not to be "motor vehicles" within the meaning of the Act and therefore not subject to safety standards, despite their use on the highways, if they (1) have an unusual body configuration which sets the vehicles apart from typical highway traffic and (2) have a maximum speed capability of 20 mph or less.

Based upon the literature you provided, the Pelican "SE" and Pelican "P" 3-wheel street sweepers appear to meet these criteria. If the advertised speed ("Up to 20 mph") is the maximum speed these vehicles are capable of, these vehicles would not be considered "motor vehicles" and therefore would not be required to comply with the safety standards. Since the advertised speed of the Whirlwind, Crosswind, and Eagle 4-wheel street sweepers, and the Ravo Model 5000 street sweeper exceeds 20 mph (or the description, i.e., "legal highway speeds", suggests that the vehicle is capable of exceeding 20 mph), these vehicles would be considered "motor vehicles." The information you enclosed on the Ravo Model 4000 street sweeper did not indicate its maximum speed capability. If this vehicle is capable of speeds in excess of 20 mph, it would also be considered a "motor vehicle." Street sweepers which are considered to be "motor vehicles" would be classified as "trucks" and required to comply with all safety standards applicable to trucks. The Federal motor vehicle safety standards are contained in Title 49 of the Code of Federal Regulations (CFR), Part 571. You may find a copy of 49 CFR Part 571 at a Federal Depository Library in your State. If you so choose, you may purchase a copy of the volume of Title 49 which includes Part 571 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238.

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

Sincerely,

Paul Jackson Rice Chief Counsel /ref:VSA d:5/8/9l

ID: 2986yy

Mr. David A. White
Manager, Reliability
Grumman Olson
P.O. Box 2005
Sturgis, MI 49091

Dear Mr. White:

This responds to your "notification of noncompliance" with 49 CFR Part 567 dated March 12, l99l, and addressed to the Associate Administrator for Enforcement. Grumman has omitted to provide a VIN on the vehicle certification label, as required by section 567.4(g)(6). You have petitioned "to have the noncompliance deemed inconsequential", and are "seeking relief from the notification and repair requirements based on that possibility."

The National Traffic and Motor Vehicle Safety Act requires notification and remedy for noncompliances with Federal motor vehicle safety standards, and for defects that relate to motor vehicle safety. The requirement that Grumman fails to meet is not contained in Safety Standard No. 115 Vehicle Identification Number, but in a regulation that is not part of the Safety Standards (Part 571). Thus, a noncompliance with a Federal motor vehicle safety standard has not occurred. Furthermore, failure to provide information on the certification label in accordance with Part 567 is not a "defect". The Act defines a defect as a "defect in performance, construction, components or materials." Clearly this does not exist.

In sum, there is no legal obligation upon Grumman Olson to notify and remedy under these circumstances, and the company is free to take whatever action it deems desirable in this case. Failure to comply with Part 567 is a violation of the Safety Act for which a civil penalty may be imposed, but the agency does not intend to seek a penalty in this matter. Nonetheless, we encourage Grumman Olson to take steps necessary to ensure that further violations do not occur.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:556 d:4/25/9l

ID: 2987yy

Mr. Keith Salsman
1296 Carman Court
Conyers, Ga. 30208

Dear Mr. Salsman:

This responds to your letter of April 16, l99l, asking for an interpretation of Motor Vehicle Safety Standard No. 108 as it relates to the "Braking Intensity Array" that you have invented.

The device is an array of nine rear lamps which include a high mounted stop lamp. The center lamp responds to pressure on the brake pedal. If "actual braking" occurs, then the lamps adjacent to the center lamp "will respond appropriately with the adjacent lights lighting under mild braking force", and the remaining pairs of lamps lighting as the braking force increases. You have assured us that the center lamp meets all requirements of Standard No. l08, and that the remaining lamps in the array are controlled by a separate device and will not operate independently.

As we see it, the acceptability of your invention under Standard No. l08 is not dependent upon any of the five sections of the standard that you quote. The four pairs of lamps that flank the designed-to-conform center stop lamp are "additional lamps" within the meaning of S5.1.3, which prohibits the installation of any additional lamp as original equipment if it "impairs the effectiveness of lighting equipment required by" Standard No. l08. Whether impairment exists is a determination to be made by the person installing the lamp as original equipment, either the manufacturer or the dealer prior to the vehicle's first sale. In this instance, it does not appear to us from your description of the array that it would impair the effectiveness of the center lamp or other stop lamps on a vehicle. We would be concerned if the size of the array is such that the interior rear view mirror could not meet the field of view requirements of Standard No. lll Rearview Mirrors; however, if the field of view is not met, the standard allows, as an alternative, the installation of an exterior rear view mirror on the passenger side.

Although your array may be permissible under Federal law, it remains subject to regulation by the individual States in which it is used. We are unable to advise you on State laws and suggest you consult the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:5/8/9l

ID: 2988yy

Mr. Stephen Mamakas
AIR Inc.
1517 West 9 Street
Brooklyn, NY 11204

Dear Mr. Mamakas:

This responds to your letter asking what Federal standards apply to the "repair" of deployed air bags. I am pleased to have this opportunity to explain our laws and regulations to you.

Section 103 of the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1392) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to issue Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection, beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. The compliance testing of vehicles to the requirement of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria (as measured on a test dummy) when tested by this agency in a 30 mph barrier crash test. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used). Automatic crash protection will save thousands of lives and prevent tens of thousands of serious injuries each year.

Note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like. Hence, there are no specific performance attributes with which repaired air bags must comply. The only Federal requirement that might affect your planned operation would be the "render inoperative" prohibition in section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that, "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 . . . in compliance with an applicable Federal motor vehicle safety standard ..." In this case, air bags are a "device or element of design" installed in passenger cars in compliance with Standard No. 208. Hence, your repair business would violate Federal law if it were to remove, deploy, disable, or otherwise "render inoperative" air bags installed in passenger cars.

However, your letter gives no indication that your company intends to perform repairs or other operations on air bags that have not yet deployed. Instead, your letter asks only about performing repairs on air bags that have already deployed. Deployed air bags have been "rendered inoperative" by the forces that caused deployment, not by anything a repair business does after that deployment. Thus, it seems unlikely that any repairs your company performs on deployed air bags would violate the "render inoperative" section of Federal law.

Although there is no Federal law prohibiting the sort of repairs you asked about, your planned "repair" of deployed air bags gives rise to a host of safety concerns. You will need to contact the manufacturer of each vehicle on which you repair an air bag to learn the exact formula and amount of gas generant in the inflator canister for each air bag. This would be necessary to ensure that the "repaired" air bag will inflate at the time and in the manner intended by the original manufacturer. Additionally, you will need to replace the crash sensors, the inflation mechanism, and other electronic parts. Again, you will need to contact the vehicle manufacturer to obtain specifications for the performance of these electronic components. You will also need to refold and lubricate the fabric of the air bag in the same manner as the original air bag. If you fail to exactly duplicate the equipment and procedures used in the original air bag, your company could significantly reduce or even eliminate the protection that would have been provided by the original air bag. This, in turn, could expose your company to substantial liability under State laws for such repairs. You may wish to consult a private attorney for more information in this regard.

I hope this information is helpful.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:208#VSA d:5/l3/9l

ID: 3004yy

Mr. Michael Maher
President
Association of Trial Lawyers of America
1050 31st Street, N.W.
Washington, D.C. 20007

Dear Mr. Maher:

This responds to your letter of April 19, 1991 concerning what you consider faulty windshield replacement. You ask that this agency state that the "render inoperative" provision of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(a)) "will be applied to replacement of damaged windows."

The agency addressed this issue recently in a letter to Mr. James E. Rooks, Jr., of your staff. For your convenience, I am enclosing a copy of that May 29, 1991 letter.

I hope that this information is useful. If you have any further questions, please contact John Rigby of this office at 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure ref:212#VSA 6/5/9l

ID: 3005yy

Mr. John E. Calow
Sr. Safety Engineer
Oshkosh Truck Corporation
Chassis Division
P. O. Box 2508
2201 Oregon St.
Oshkosh, Wisconsin 54903-2508

Dear Mr. Calow:

This responds to your letter concerning the responsibilities of an incomplete vehicle manufacturer under Federal Motor Vehicle Safety Standard No. 115, Vehicle Identification Number--Basic Requirements. In your letter, you explained that Oshkosh provides chassis to final stage manufacturers. You stated that the final stage manufacturers are requesting that Oshkosh provide a duplicate VIN tag with the incomplete vehicle. The additional VIN tag would be affixed by the final stage maufacturer, so that it is readable through the vehicle glazing. You noted that there is a possibility that the final stage manufacturer might place the incorrect VIN tag under the vehicle glazing, and that Oshkosh would have no control of the final stage manufacturer correctly identifying the vehicle. You then asked two questions, which are addressed below.

Your first question asked whether it is legal for an incomplete vehicle manufacturer to supply the final stage manufacturer with an additional "loose" VIN tag. The answer to this question is yes. No provision in Standard No. 115 prohibits the incomplete vehicle manufacturer from providing an extra VIN tag which the final stage manufacturer may affix so that it is visible through the vehicle glazing.

Your second question asked about the legal responsibilities of the incomplete vehicle manufacturer if an incorrect VIN tag is affixed to the vehicle by the final stage manufacturer. Except in the situation where an incomplete vehicle manufacturer assumes legal responsibility for all duties and liabilities imposed on manufacturers by the Safety Act (see 49 CFR Part 568.7), which we assume does not apply in your case, an incomplete vehicle manufacturer is not responsible under the Safety Act for the actions of a final stage manufacturer.

I hope this satisfactorily responds to your concerns. If there are any further questions, please write to me or contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:115#567#568 d:5/20/9l

ID: 3006yy

James E. Rooks, Jr., Esq.
Staff Attorney
Association of Trial Lawyers of America
1050 31st Street, N.W.
Washington, DC 20007-4499

Dear Mr. Rooks:

This responds to your letter of March 27, 1991 concerning the applicability of various motor vehicle safety standards to the repair or replacement of damaged motor vehicle windshields. You enclosed a copy of the "Legal Advisory" column from the November 1986 issue of Glass magazine. That column stated that the National Highway Traffic Safety Administration ("NHTSA") advised the National Glass Association that "federal windshield safety standards are not applicable to replacement windshield installations once vehicles have left their new car dealers' lots." The column went on to state that "no kind or amount of work on a damaged windshield renders it inoperable in violation of federal law."

Your letter asked whether NHTSA currently adheres to the above position with regard to two Federal motor vehicle safety standards: Standard No. 212, Windshield Mounting, and Standard No. 216, Roof Crush Resistance. In a subsequent telephone conversation with John Rigby of this office, you asked the agency also to address the applicability of these principles to Standard No. 205, Glazing Materials.

I am pleased to have the opportunity to discuss these issues. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966 ("Act"), 15 U.S.C. 1397(a)(1)(A), provides that no person may manufacture for sale, sell, introduce into interstate commerce or import any motor vehicle or item of motor vehicle equipment that does not conform with all applicable Federal motor vehicle safety standards. However, pursuant to section 108(b)(1) of the Act, 15 U.S.C. 1397(b)(1), that prohibition does not apply "after the first purchase of [the vehicle or equipment] in good faith for purposes other than resale." On the other hand, section 108(a)(2) of the Act, 15 U.S.C. 1397(a)(2), provides that: "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 applicable Federal motor vehicle safety standard . . . ."

With respect to Standards 212 and 216, which impose requirements applicable to completed motor vehicles, a manufacturer is not required to assure that the vehicles it manufactures remain in compliance after they have been sold for purposes other than resale. Moreover, a repair business that replaced a windshield that was previously damaged could not violate the "render inoperative" provision of the Act, regardless of what sealant was used. As NHTSA stated in a September 3, l98l letter to the National Glass Dealers Association, even if it were somehow determined that the repaired vehicle did not satisfy the requirements of Standard No. 212 or No. 216, there would be no violation of the "render inoperative" provision of the Act. This is because the object or event that damaged the windshield in the first place had already rendered the windshield "inoperative" with respect to these standards. See also an October 5, 1983 letter to Anthony M. Peterson of Lansing Auto Glass Company. However, if for some reason a repair business were to replace a windshield that was not previously damaged, it could be held liable under section 108(a)(2) if it knew that its action caused the vehicle to no longer comply with either standard.

I would also like to deal with a relatively unlikely scenario. If a windshield needs to be repaired or replaced prior to the first sale to a consumer (e.g., due to breakage while en route from the manufacturer's factory to the dealer's showroom), the seller is required by section 108(a)(1)(A) to assure that the vehicle is brought into compliance with all applicable standards.

The situation is somewhat different with respect to Standard No. 205, which establishes, inter alia, strength and light transmittance performance requirements that must be met by glazing materials used in motor vehicles. Not only must the glazing in new vehicles meet this standard, replacement glass must also comply. Thus, any person who installs motor vehicle glazing that is not certified as being in compliance with Standard No. 205 would violate section 108(a)(1)(A), regardless of whether the vehicle is new. This would be because the installer would be selling or otherwise introducing into interstate commerce an item of motor vehicle equipment (i.e., the glazing) that did not comply with an applicable safety standard. We have stated this interpretation in previous letters (most recently in our letter of March 14, 1991 to Loren Thompson).

Finally, you asked in your letter "whether these positions have yet been tested in court." We are not aware of any litigation in which any of the interpretation letters cited above have been considered. I hope that this information is useful. If you have any further questions, please contact John Rigby of this office at 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

/Ref:205, 212, 216, VSA d:5/29/9l

ID: 3007yy

Mr. Richard H. Lucki
U.S. Factory Representative
Peugeot
U.S. Technical Research Company
1099 Wall Street West
Lyndhurst, NJ 07071

Dear Mr. Lucki:

This responds to your letter requesting an interpretation of Federal Motor Vehicle Safety Standard No. 102, Transmission Shift Lever Sequence, Starter Interlock, and Transmission Braking Effect. You asked whether a planned gear position display for automatic transmission vehicles would meet the standard's requirement that full gear position information be provided in a single location. As discussed below, the answer to that question is yes.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment meet applicable standards. The following represents our opinion based on the facts provided in your letter.

As you are aware, on March 26, l99l, this agency published in the Federal Register a final rule amending Standard No. l02. Among the amendments is a new S3.l.4.4 that requires, for all automatic transmission vehicles, that full gear position information, i.e., identification of shift level positions, including the position of the gears in relation to each other, and the gear position selected, be displayed "in view of the driver in a single location."

According to a drawing enclosed with your letter, your planned gear position display would be located on the instrument panel, between the speedometer and tachometer. The current gear position, either P, R, N, D, 3, 2, or l, would be shown in a square, by means of electronic display. The position of the gears in relation to each other, i.e., P R N D 3 2 1, would be marked adjacent to the electronic display. You state that the gear positions in relation to each other will be illuminated when the headlamps are activated.

It is our opinion that your planned design would meet S3.l.4.4's requirement that full gear position information be displayed in a single location. The gear position selected would be shown in the square electronic display. The position of the gears in relation to each other would be marked adjacent to the electronic display. Because the marking of the position of the gears in relation to each other would be adjacent to the electronic display, it is our opinion that all of the information would be considered to be provided in a single location.

I note that this same issue was addressed in the preamble to the March l99l final rule, in connection with a comment submitted by Chrysler. The agency stated the following:

If Chrysler wishes to provide a display of current gear position information on the instrument panel, it is free to do so. Under the amendment, it can either provide full gear position information at that location, e.g., include a "P R N D L" label adjacent to the display, or it can provide a display of current gear position information only on the instrument panel and include a display of full gear position information elsewhere, e.g., on the floor console. 56 FR l2470, March 26, l99l.

Your proposed design is consistent with the first of the two options discussed in that paragraph.

I hope this responds satisfactorily to your concerns. If you have any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:102 d:5/29/9l

ID: 3008yy

Ms. Vel McCaslin
Program Director
Grace After School
10221 Ella Lee at Sam Houston Tollway
Houston, Texas 77042

Dear Ms. McCaslin:

This responds to your letter of April 1, 1991 requesting clarification of the National Traffic and Motor Vehicle Safety Act (the Act) and Federal regulations at 49 CFR Part 571 as they apply to 15 passenger vans used to transport students from Houston Independent Schools to an After School Program at your church.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. The National Highway Traffic Safety Administration (NHTSA) has used its authority under the Act to issue motor vehicle safety standards that apply to the manufacture and sale of various types of new motor vehicles. One type is the school bus. NHTSA defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for purposes that include transporting students to and from "school or school-related events." Therefore, unless your program would be considered a "school or school-related event," your vehicles would not be considered "school buses" under Federal law. In order for NHTSA to determine if your program would be considered a "school or school-related event," you would need to provide us with further information about your program.

Under Federal law, the answer to the question of whether your buses are school buses bears on the legal obligations of the seller, but not those of the purchaser or user, of new school buses. It is a violation of Federal law for any person to sell any new vehicle that does not comply with all Federal school bus safety standards if that person is aware that the purchaser intends to use the vehicle as a school bus. However, it is not a violation of Federal law for the purchaser to buy or use a vehicle to transport school children that does not comply with all the Federal standards.

Under State, and common law, whether your buses complied with the Federal standards may have legal significance for you as a vehicle user. Since the individual States have authority over the use of vehicles, you must look to Texas law to determine if your After School Program may use noncomplying vans to transport school children. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

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

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:571.3 "school bus" d:5/29/9l