ID: nht88-3.16

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: J. MARK SMITH -- LYNCO PRODUCTS

TITLE: NONE

ATTACHMT: MEMO DATED 11-3-87, TO NHTSA, FROM J. MARK SMITH -- LYNCO PRODUCTS, OCC-1246

TEXT: This responds to your letter concerning the application of Federal safety standards to your manufacture of a "storage console-armrest." I regret the delay in responding. The illustration you included in your letter shows that the console apparatus is de signed to be placed on a bench seat and is not attached in any manner to the seat structure. The console-armrest has a wood frame, is entirely covered with fabric, and has a hinged, padded top which can be flipped open for access to the storage area.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new moto r vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicl e Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information pro vided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to a removable console-armrest sold directly to a consumer as an item of "aftermarket" equipment. However, under Federal law you are considered a manufacturer of mot or vehicle equipment, and are therefore subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly descr ibes those responsibilities. In the event that you or NHTSA determines that your products contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

Safety Standard No. 201, Occupant Protection in Interior Impact, and No. 302, Flammability of Interior Materials, apply to new completed motor

vehicles and set performance requirements for consoles and armrests installed on new motor vehicles prior to the vehicle's first sale to a consumer. While these standards do not apply directly to a console-armrest sold only as aftermarket equipment, ins tallation of your product on both new and used vehicles may give rise to certain responsibilities on the part of any commercial business making the installation.

A manufacturer of a new vehicle installing your product on the vehicle prior to the vehicle's first sale to a consumer would be required to certify that the vehicle complies with all applicable Federal motor vehicle safety standards, including Standard N o. 201. Paragraph S3.3 of the standard requires interior compartment door assemblies located in a console assembly to remain closed under certain test conditions. The purpose of the requirement is to prevent a door from flying open and striking an occu pant in a crash. The door in your console would have to meet this requirement if your product is installed on a new vehicle prior to the vehicle's first sale. Your product would also have to comply with Standard No. 201's requirements for armrests spec ified in paragraph S3.5 of the standard if your console-armrest is installed in a new motor vehicle prior to the vehicle's first sale to a consumer.

Standard No. 302 specifies burn resistance requirements for certain vehicle components, including arm rests and compartment shelves. A vehicle manufacturer installing your product on a new vehicle would also have to ensure that the fabric on your consol e-armrest burns at a rate within the limits specified in the standard. I have enclosed copies of both Standards No. 302 and No. 201 for your information.

Section 108(a)(2)(A) of the Safety Act specifies that no manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle in compliance with an appli cable Federal motor vehicle safety standard. This means that none of the persons mentioned could install your product in a new or used vehicle if the installation would destroy the vehicle's compliance with applicable Federal safety standards. For exam ple, the flammability resistance of the original vehicle is an element of design installed in a motor vehicle in compliance with Standard No. 302. Thus, a manufacturer, distributor, dealer or motor vehicle repair business could not install a console-arm rest that does not comply with Standard No. 302 in a new or used motor vehicle since to do so would render inoperative that element of design, and thus violate $ 108(a)(2)(A) of the Act. Section 109 of the Act specifies a civil penalty of up to $ 1,000 for each violation of $ 108.

In summary, your console-armrests that are sold to motor vehicle owners as items of aftermarket equipment are not subject to any Federal motor vehicle safety standard. The console-armrest could be subject to Federal standards for occupant interior and f lammability protection if it is installed on new vehicles prior to the vehicle's first sale. Commercial businesses are prohibited from installing the console-armrest on new or used vehicles if the result renders inoperative the compliance of requisite s afety components or designs with Federal safety standards. Individual owners, however, are not covered by @ 108(a)(2)(A) and may

themselves install your product in their vehicles without regard to the rendering inoperative prohibition of the Safety Act. To repeat, you as the equipment manufacturer would be obligated to recall and remedy your products that contain a defect related to motor vehicle safety, even if the console-armrest were installed by vehicle owners themselves.

I hope this information has been helpful. Please feel free to contact us if you have further questions.

ENCLOSURES

ID: nht88-3.17

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: WILLIAM K. BALDWIN,

ATTACHMT: MEMO DATED 5-7-88, "THE BALDWIN REAR-VIEW MIRROR SAFETY SYSTEM" PARTLY COVERED BY U.S. PAT #3,667,833

TEXT: This responds to your May 7, 1988 letter, concerning the "Baldwin Rear-View Mirror Safety System." You stated that this mirror system contains both a flat mirror of unit magnification and a convex mirror, and stated your belief that this mirror system "o ffers the latest in technology and safety." You requested that the National Highway Traffic Safety Administration (NHTSA) evaluate and approve your mirror system. We have no authority to approve any motor vehicles or motor vehicle equipment, as explaine d below.

The National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Safety Act") authorizes this agency to issue safety standards applicable to motor vehicles and items of motor vehicle equipment. The Safety Act also requires that these safety s tandards establish minimum levels of performance for vehicles or equipment. Once the necessary performance level has been established, vehicle or equipment manufacturers are free to choose any means they wish to achieve the required level of performance . In other words, the safety standards do not require the use of any particular manufacturer's product; the standards permit the use of any manufacturer's product that achieves the necessary performance level. Section 114 of the Safety Act (15 U.S.C. 1 403) requires manufacturers to certify that each of its vehicles or items of motor vehicle equipment complies with all applicable safety standards. Because of this provision in the law, NHTSA cannot approve, endorse, or certify any motor vehicle or item of motor vehicle equipment.

NHTSA has exercised its authority to establish performance requirements for new vehicles in Standard No. 111, Rearview Mirrors (49 CFR @ 571.111; copy enclosed). As you will see, Standard No. 111 establishes performance and location requirements for the rearview mirrors installed in any new vehicle. This means that vehicle manufacturers must certify

that each of their new vehicles complies with the applicable requirements of Standard No. 111. Standard No. 111 does not apply to rearview mirrors as items of equipment. The effect of this is to place the certification responsibility for original equip ment rearview mirror systems entirely on the vehicle manufacturer. You as the manufacturer of the mirror are not required to certify that your mirrors comply with Standard No. 111 or any other standard.

With respect to your new mirror system, NHTSA has said in many previous interpretations that vehicle manufacturers may install mirror systems that combine flat and convex mirrors on their new vehicles, provided that the flat mirror portion by itself comp lies with the requirements of Standard No. 111 that are applicable to the vehicle type on which the mirror system is installed.

Assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on new vehicles of that type.

Please note that the requirements of Standard No. 111 do not apply to mirrors installed as aftermarket equipment. The only limitation on such installations is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section p rohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. The rearview mirro r system in a vehicle is a device installed in compliance with Standard No. 111. If the installation of an aftermarket mirror system resulted in a vehicle no longer complying with Standard No. 111, a manufacturer, distributor, dealer, or repair business that removed a complying system and replaced it with the noncomplying system would have rendered inoperative a device (the mirror system) installed in the vehicle in compliance with Standard No. 111. Section 109 of the Safety Act (15 U.S.C. 1398) speci fies a civil penalty of up to $ 1,000 for each violation of the "render inoperative" provision.

Again assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on used vehicles of that type. If y our mirror system does not comply with the requirements of Standard No. 111 for a vehicle type, it cannot be installed on used vehicles of that type by any manufacturer, distributor, dealer, or repair business.

Please note that the Safety Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual owners can install any mirror system they want to their own vehicles, regardless o f whether that mirror system renders inoperative the vehicle's compliance with the requirements of Standard No. 111.

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

ENCLOSURE

ID: nht88-3.18

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: MAMORU ARISAKA -- MANAGER, AUTOMOTIVE LIGHTING HOMOLOGATION SECT. STANLEY ELECTRIC CO., LTD.

TITLE: NONE

ATTACHMT: LETTER DATED 07/07/88 TO ERIKA Z JONES FROM MAMORU ARISAKA, OCC - 2268

TEXT: Dear Mr. Arisaka:

This is in reply to your letter of July 7, 1988, with respect to a motorcycle lighting device called the "rolling headlamp." The headlamp is designed to have its vertical plane always perpendicular to the ground regardless of the inclination of the motor cycle. You have asked whether such a device is legally permissible.

Motor Vehicle Safety Standard No. 108 does not prohibit alteration of the mounting angle of a headlamp. Although paragraph S4.3.1 requires each lamp to "be securely mounted on a rigid part of the vehicle," your lamp appears to be "securely mounted" even if it is able to rotate.

I hope this answers your question.

Sincerely,

ID: nht88-3.19

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: FRANK REYNOLDS -- F.E. REYNOLDS ASSOCIATES

TITLE: NONE

ATTACHMT: LETTER DATED 06/20/80 TO JAMES TYDINGS FROM FRANK BERNDT; NOA - 30

TEXT: Dear Mr. Reynolds:

This is in response to your telephone conversation with Marvin Shaw of my staff, seeking a clarification of my June 16, 1988 letter concerning school bus mirrors under Highway Safety Program Guideline No. 17. Specifically, you asked about the meaning of the phrase, "area in front of the bus," as used in section S9.2(b) of Standard No. 111, Rearview Mirrors (49 CFR @ 571.111). In your telephone conversation, you stated that a NHTSA staff person told you in a previous telephone conversation that NHTSA h ad defined this phrase to mean "the area three feet in front of the bus." NHTSA has never so interpreted this phrase in Standard No. 111.

For your information, I am enclosing a June 20, 1980 letter to James Tydings that sets forth the agency's interpretation of S9.2(b) of Standard No. 111. This letter notes that the area of concern in S9.2(b) is the region in front of the bus where a dr iver is not able to see directly a school age child. As explained in the letter and an earlier notice (40 FR 33829, August 12, 1975), the purpose of a crossview mirror is to "address special problems of driver visibility associated with pupil transporta tion," and this type of mirror "allows the bus driver to see the area immediately in front of a stopped bus to be sure there are no children there before moving the bus." This letter then explains: "The agency used the word 'view' in its ordinary, dictio nary sense to mean within the range of sight. Thus, most, but not literally all, of the front bumper must be visible to the driver by use of the crossview mirror to ensure that he or she can see children standing in front of the bus." This is still an a ccurate expression of the agency's interpretation of the purpose of a crossview mirror and this phrase.

In your telephone conversation, you also expressed concern about the "legal effect" of Standard No. 111. You should be aware of @ 108 (a)(1)(A) of the Safety Act which states that

No person shall manufacturer for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard except as provided in subsection (b) of this section.

I hope this information is useful. If you have any additional questions, or need further information on this subject, please feel free to contact Mr. Shaw at this address or by telephone at (202) 366-2992.

Enclosure

Sincerely,

ID: nht88-3.2

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: L. T. MITCHELL -- SPECIFICATION ENGINEER

TITLE: NONE

ATTACHMT: LETTER DATED 04/04/88 TO ERIKA Z. JONES FROM L.T. MITCHELL, OCC - 1831

TEXT: Dear Mr. Mitchell:

This is in reply to your letter of April 4, 1988, bringing our attention to a conflict between a Federal motor vehicle safety standard applicable to school bus lighting, and State requirements applicable to these vehicles.

You have informed us that a State prohibits any bus which it does not define as a school bus, from being identified as a school bus, either by words or by color, and from having the warning lamp system required by Standard No. 108. Paragraph S4.1.4 of Fe deral Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment requires each school bus to be equipped with a four or eight lamp signal system, in addition to other required lighting equipment. You have asked whether th e warning lights must be installed on school activity buses.

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

a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school stud ents to or from such schools or events related to such schools." (15 U.S.C. 1391(14)) (Emphasis added.)

On December 29, 1977, the then Chief Counsel of this agency issued an opinion under 15 U.S.C. 1391(14) that Head Start facilities are considered preprimary schools and that buses transporting children to and from those schools are defined as school buses under Federal law and accordingly are subject to the Federal school bus safety standards. Specifically, the letter stated:

The NHTSA interprets the term "school" broadly, because the agency believes that this is the intent of the Motor Vehicle and School Bus Safety Amendments of 1974 (Pub. L. 93-492) which directed the creation of the school bus safety standards. Since t his head start

program is basically an educational program for preprimary students, the agency had determined that those facilities are schools and bus transporting children to and from them must comply with the Federal school bus safety requirements if they transp ort 10 or more passengers.

The 1977 opinion of this agency regarding Congress' 1974 mandate remains operative. The Federal motor vehicle safety standards applicable to buses defined under Federal law as school buses continue to apply in all respects to buses used to carry preprim ary school pupils such as those in the Head Start program. Any manufacturer who omits the warning lamp system required by paragraph S4.1.4 of Standard No. 108, or who delivers a school bus with the warning lamp system inoperative, is in violation of the National Traffic and Motor Vehicle Safety Act, and subject to civil penalties. The manufacturer is also subject to the provisions of the Act for notification and remedy of the noncompliance with Standard No. 108.

The effect of the preemption provision in section 103(d) of the Act (15 U.S.C. 1392(d)) is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that St ate standard or requirement is identical to the Federal one. While the statute also permits a state to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light requirement as a "higher standard of performance." Thus, regardless of how a State defines "school bus," a State cannot prohibit a school bus, as defined under Federal law, from being equipped with a school bus warning system that is designed and wired as required by p aragraph S4.1.4 of Standard No. 108. Although each State has the authority to establish laws for the use of vehicles on its roads, those State laws may not override Federal laws. The effect of Federal preemption is that the school bus warning system mu st continue to operate as required by paragraph S4.1.4(b)(ii), and a State may not directly or indirectly require tampering with that equipment in order to comply with State usage laws.

Sincerely,

ID: nht88-3.20

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: PAUL A. RENEAU

TITLE: NONE

ATTACHMT: LETTER UNDATED TO NHTSA FROM PAUL A. RENEAU, OCC - 1495

TEXT: Dear Mr. Reneau:

This is a response to your undated letter which this agency received in January 1988. I apologize for the delay in this response. In your letter, you presented a schematic and an engineering explanation of a power window system design and operation, an d asked whether the system meets Federal safety standard 118, Power-operated Window Systems (49 CFR @ 571.118). Based on my understanding of the information enclosed with your letter, it appears that your power window system would comply with Standard 1 18.

As I understand your system description, there are two electrical circuits that control power window operations. In the principal circuit, when the vehicle ignition key system is in the "ON" or "ACCESSORY" position, the power windows are operable. In m ost power-operated window systems, turning the ignition key to the "OFF" position means that the power windows no longer are operable.

However, in your system, a second, parallel circuit connects to the power window motor, and provides an energy source to allow an operator to close a power window when the ignition key is in the "OFF" position. The parallel energy source permits operati on only for a limited time period controlled by the electronic circuitry. My understanding is that with your design, the parallel circuit includes door switches which stop power window operation irrespective of the ignition key system position, whenever either vehicle front door is opened during the window closing sequence. According to your diagram and explanation, in such a circumstance, an operator must close the door, and return the ignition key to the "ON" or "ACCESSORY" position to reactivate th e power window system.

Paragraph S3 of Standard 118 specifies that power window systems may be closed only under certain listed conditions. One of those conditions is when the ignition key is in the "ON" or "ACCESSORY" position, as specified in S3(a). When the ignition key is in the "OFF" position, the power windows may be closed only under the conditions described in S3(b)

(by muscular force unassisted by a vehicle power source), S3(c) (upon activation of a key-locking system on the exterior of the vehicle), or S3(d). Paragraph S3(d) reads as follows:

During the interval between the time the locking device which controls the activation of the vehicle's engine is turned off and the opening of either of a two-door vehicle's doors or, in the case of a vehicle with more than two doors, the opening of e ither of its front doors.

Based on my understanding of the information you supplied, the only time the power windows in your system can be closed with the ignition key in the "OFF" position is during the interval between engine deactivation and opening of either of the vehicle's front doors. Standard 118 expressly permits this, so your system appears to comply with that standard.

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

Sincerely,

ID: nht88-3.21

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: EARL DAHL -- THE GOODYEAR TIRE & RUBBER CO.

TITLE: NONE

ATTACHMT: LETTER DATED 06/01/88 TO ERIKA Z. JONES FROM EARL W. DAHL, OCC - 2106

TEXT: Dear Mr. Dahl:

This responds to your letter of June 1, 1988, seeking an interpretation of 49 CFR Part 574, Tire Identification and Recordkeeping. Specifically, you asked whether Goodyear could engrave its mold for the Tire Identification Number with a style of charact ers that was not specifically authorized in the Notes following Figure 1 of @ 574.5.

Note 1 to Figure 1 of Part 574 specifies only four different print types which may be used for the DOT symbol and tire identification number. The style of print that you wish to use is not one of these designated styles. Nevertheless, Note 4 to Figure 1 states that other print types will be permitted if approved by the National Highway Transportation Safety Administration (NHTSA). The agency has examined the print type shown in the diagram attached to your letter and has no objections to your company printing the required information in the print type you submitted.

You should be aware that in the final rule establishing Part 574 (35 FR 17257, November 10, 1970), NHTSA explained that the reason for specifying only four print types which would be acceptable without advance agency approval was to ensure that the infor mation would be easily readable by all persons. The print type that you submitted is easily readable and thus satisfies our concerns in that regard. Accordingly, NHTSA approves your print type.

Sincerely,

ID: nht88-3.22

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JERRY SWISHER, -- COOPER TIRE & RUBBER CO.

TITLE: NONE

ATTACHMT: LETTER DATED 05/20/88 TO OFFICE OF CHIEF COUNSEL -- NHTSA FROM JERRY SWISHER, RE REQUEST FOR OPINION

TEXT: Dear Mr. Swisher:

This responds to your letter of May 20, 1988, in which you sought an interpretation of Standard No. 109, New Pneumatic Tires - Passenger Cars (49 CFR @ 571.109). Specifically, you asked if either of three proposed courses of action would comply with the labeling requirements specified in S4.3.2 of Standard No. 109. That section reads as follows: "Each tire shall be labeled with the name of the manufacturer, or the brand name and number assigned to the manufacturer in the manner specified in Part 574." None of your proposed courses of action would satisfy this requirement, as explained below.

You first asked if it is permissible to have no identification on the sidewall as to the name of the manufacturer or the brand name owner, but to simply use the identification numbers assigned to Cooper Tire under Part 574. Section S4.3.2 of Standard No . 109 explicitly requires each tire to be labeled with the manufacturer's name or a brand name and the identification number assigned to the manufacturer. Tires that are identified solely by an identification number would not comply with this requiremen t.

Second, you asked if a tire could be labeled with three different brand names. Section S4.3.2 uses the singular tense to identify the name that must appear on the sidewall (name of the manufacturer or the brand name) and connects the alternative with the disjunctive "or." This grammatical structure indicates that only one name, either that of the actual manufacturer or the brand name owner, shall be labeled on the tire. The agency chose this grammatical structure to ensure that consumers would not be c onfused about the identity of the brand name or manufacturer of the tire. Accordingly, S4.3.2 prohibits Cooper from selling passenger car tires labeled with the names of three different brand name owners.

Third, you asked if a generic term such as "All Season" or "Performance" would satisfy the requirement of S4.3.2 that either the name of the manufacturer or a brand name be labeled on the tires. Clearly, a generic term like "Performance" is not the "nam e of the manufacturer," Cooper in this case.

The "brand name" refers to the name under which a tire is sold at retail, whether it is identical to the manufacturer's name (e.g., Firestone), a name owned by the manufacturer and used in place of its corporate name (i.e., a house brand, such as Falls t hat is manufactured by Cooper), or a name owned by someone other than the manufacturer (i.e., a private brand such as Atlas that is made by several manufacturers). My understanding of this proposed course of action is that the tires would be advertised and sold at retail as tires made by one of the three brand name owners, presumably using its brand name, not under the name "All Season" or "Performance." Therefore, these generic terms would not be considered brand names for the purposes of section S4.3 .2.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

ID: nht88-3.23

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JIM SCHULD -- MILL SUPPLY INC.

TITLE: NONE

ATTACHMT: LETTER DATED 10/20/87 TO OFFICE OF CHIEF COUNSEL -- NHTSA FROM JIM SCHULD, OCC - 1177

TEXT: Dear Mr. Schuld:

This responds to your letter asking for information concerning the application of Federal safety standards to your manufacture of a jump seat that you said would be "removable and able to be transferred from one truck to another." I apologize for the del ay in responding. Generally, Federal motor vehicle seating standards apply to motor vehicles prior to their first purchase by a consumer, and not to "aftermarket" seating components added to a vehicle after such purchase. However, several of our safety standards could apply to your product if the seat is installed in a new vehicle prior to the vehicle's first sale to a consumer. Federal law would also affect your installation of the jump seat in new or used vehicles.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new moto r vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicl e Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information pro vided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to a removable jump seat sold directly to a consumer. Federal seating standards generally apply only to completed new motor vehicles and not to items of equipment su ch as a removable jump seat. However, as a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA

determines that your jump seats contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

If your product will be installed on a new vehicle prior to the vehicle's first sale to a consumer, then the manufacturer of the vehicle will have certain responsibilities relating to its obligation under the Safety Act to certify the new vehicle as meet ing all applicable Federal motor vehicle safety standards. Federal standards for seating systems (Standard No. 2077) and crash protection (Standard No. 208) apply to designated seating positions in new vehicles. While these standards do not apply to au xiliary seating accommodations (e.g., temporary or folding jump seats), the determination must be made whether your apparatus falls into this latter category and is thus excluded from coverage. Unfortunately, information provided in your letter did not describe your jump seat in sufficient detail for us to offer an opinion as to whether your particular seat is an auxiliary seating accommodation. Photographs or engineering diagrams of your product would assist us in determining whether the seat would be considered an auxiliary seating accommodation, and thus excluded from coverage under Standard Nos. 207 and 208 if installed on new vehicles.

Another Federal standard to which the vehicle manufacturer must certify its vehicle as conforming is Standard No. 302, Flammability of Interior Materials. This standard establishes flammability requirements that must be met by certain vehicle components including seat cushions and seat backs on any occupant seat installed in a new vehicle prior to the vehicle's first sale to a consumer. A manufacturer installing your jump seat on a new vehicle would thus be required to ensure that any seat cushion or s eat back on your product conforms to the flammability resistance requirements of the standard.

You should also be aware that there are statutory considerations that affect the installation of your jump seats in new and used vehicles. Section @ 108(a)(2)(A) of the Vehicle Safety Act specifies: "No manufacturer, distributor, dealer, or motor vehicl e repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requir es manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing the jump seat to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the jump seat does not degrade from the safety of existing seating or occupant protection systems on the vehicle. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of $108.

In summary, removable jump seats sold to motor vehicle owners as items of aftermarket equipment are not subject to any Federal motor vehicle safety standard. The seat could be subject to Federal standards for seating

performance and occupant crash and flammability protection if it is installed on new vehicles prior to the vehicle's first sale. Commercial businesses are prohibited from installing the jump seat if the result renders inoperative the compliance of r equisite safety components or designs with Federal safety standards. Individual owners, however, are not covered by @ 108(a)(2)(A) and may themselves install the jump seat in their vehicles without regard to the rendering inoperative prohibition of the Safety Act. To repeat, you as the equipment manufacturer would be obligated to recall and remedy seats that contain a defect related to motor vehicle safety, even if the seats were installed by vehicle owners themselves.

Please feel free to contact us if you have further questions.

ENCLOSURE

Sincerely,

ID: nht88-3.24

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL

TO: R. C. ROST -- PRESIDENT MINNESOTA BODY & EQUIPMENT CO.

TITLE: NONE

ATTACHMT: LETTER DATED 03/18/88 TO CHIEF COUNCIL -- NHTSA, FROM R&C ROST RE REQUEST THAT HEADSTART BUSES NOT BE REQUIRED TO HAVE ROOF WARNING LIGHTS IF A COLOR OTHER THAN SCHOOL BUS YELLOW IS USED, OCC - 1763; LETTER DATED 12/21/77, TO JAMES TYDINGS FROM JOSEPH J LEVIN; LETTER DATED 02/11/88 TO SHANON L FOND FROM JERRY SMITH RE FEDERAL INTERPRETATION OF SCHOOL BUS USER; LETTER DATED 02/25/88 TO SHARON FORD, FROM JERRY SMITH; UNDATED BROCHURES ON SCHOOLBUS BY WAYNE CORPORATION

TEXT: Dear Mr. Rost:

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

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

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

a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school stud ents to or from such schools or events related to such schools." (15 U.S.C. 1391(14)) (Emphasis added.)

On December 29, 1977, the then Chief Counsel of this agency issued an opinion under 15 U.S.C. 1391(14) that Head Start facilities are considered preprimary schools and that buses transporting children to and from those schools are defined as school buses under Federal law and accordingly are subject to the Federal school bus safety standards. Specifically, the letter stated:

The NHTSA interprets the term "school" broadly, because the agency believes that this is the intent of the Motor Vehicle and School Bus Safety Amendments of 1974 (Pub. L. 93-492) which directed the creation of the school bus safety standards. Since t his head start program is basically an educational program for preprimary students, the agency had determined that those facilities are schools and buses transporting children to and from them must comply with the Federal school bus safety requirements i f they transport 10 or more passengers.

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

The effect of the preemption provision in section 103(d) of the Act (15 U.S.C. 1392(d)) is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that St ate standard or requirement is identical to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light requirement as a "higher standard of performance." Thus, regardless of how a State defines "school bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with a school bus warning sys tem that is designed and wired as required by paragraph S4.1.4 of Standard No. 108. Although each State has the authority to establish laws for the use of vehicles on its roads, those State laws may not override Federal laws. The effect of Federal pree mption is that the school bus warning system must continue to operate as required by paragraph S4.1.4(b) (ii), and a State may not directly or indirectly require tampering with that equipment in order to comply with State usage laws.

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

Sincerely,