Interpretation ID: nht87-2.67

TYPE: INTERPRETATION-NHTSA

DATE: 08/11/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Melvin H. Smith -- Illinois Dept. of Transportation

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/23/76 letter from F. Berndt to Dept of Transportation - New York (Std - 222); 8/11/87 letter from Erika Z. Jones to Larry F. Wort

TEXT:

Mr. Melvin H. Smith Governor's Representative for Highway Safety Illinois Department of Transportation 2300 S. Dirksen parkway Springfield, IL 62764

This responds to Your June 9, 1987, letter to me asking whether Section 103(d) of the National Traffic and Motor Vehicle Safety Act preempts an Illinois statute requiring 28-inch high seat backs on all new large school buses. The answer to your question is yes.

I must disagree with your view that FMVSS No. 222, School Bus Passenger Seating and Crash Protection, does not regulate seat back height. A seat back height requirement, established in paragraph S5.1.2, is an integral part of the standard's mandated comp artmentalization system of passenger crash protection. This agency has consistently said that any State requirement relating to seat back height that is not identical to S5.1.2 is preempted under Section 103(d) of the Safety Act.

I have enclosed a copy of a March 23, 1976 letter to Mr. Martin Chauvin relating to the preemptive effect of Federal law over a New York State law for 28-inch high seat backs. Please note the discussion in the Chauvin letter relating to State requirement s for additional safety features in public school buses. Under Section l03(d), a State may require a seat back height higher than 20 inches for its public school buses, provided that the vehicles continue to comply with all applicable federal safety stan dards.

I will send a copy of this letter to Mr. Larry Wort of your Department, whose earlier letter to us asking about our requirements for seat back height and restraining barriers raised also the same preemption issues. Please feel free to contact my office i f you have further questions.

Sincerely, Erika Z. Jones Chief Counsel Enclosure

(see 3/23/76 letter from F. Berndt to Dept. of Transportation - New York; see also 8/11/87 letter from Erika Z. Jones to Larry F. Wort)

June 16, 1987

Ms. Erika Z. Jones, Chief Counsel National Highway Traffic Safety Administration Room 5219 480 Seventh Street, S.W. Washington, D. C. 20590

Dear Ms. Jones:

My letter of June 9, 1987. about preemption of the Illinois statute requiring 28 inch high seat backs in school buses contains an inadvertent error. On the first page, In the last full paragraph. the reference in parentheses should have read (49 CFR 571. 222S5.1.2.).

Please correct the reference and forgive our error.

Sincerely, Melvin H. Smith Governor's Representative for Highway Safety

June 9, 1987

Ms. Erika Z. Jones. Chief Counsel National Highway Traffic Safety Administration Room 5219 480 Seventh Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

In this letter I ask you to agree that the Illinois statute requiring 28 inch high seat backs on passenger seats in Type I school buses Is not preempted by a Federal statute; i.e., 15 USC 1392(d). A copy of the Illinois statute (Section 12-807.1 of the I llinois Vehicle Code (IVC) - Ill. Rev. Stat., 1986 Supp., ch. 95 1/2. par. 12-807.1) is enclosed. A Type I school bus has a GVWR more than 10,000 pounds (IVC 12-800, enclosed) .

We believe IVC 12-807. 1 is not preempted because it governs an aspect of performance not governed by a federal Motor Vehicle Safety Standard (FMVSS - 49 CFR 571).

In Illinois. every school bus must meet the construction standards promulgated by this Department. (See IVC 1-182, 12-100. and 12-812, enclosed. By administrative agreement, the State Board of Education promulgates rules. regulations, and/or standards fo r OPERATION of school buses.) This Department's construction standards, among other things, require that each school bus conform to applicable provisions of FMVSS. The "high back" seats must conform to FMVSS 222. Each manufacturer of Type I school buses agrees and so certifies on the required permanently affixed Federal and State certification labels.

FMVSS 222 does not specify the height of a seat back. Instead, it specifies that each school bus passenger seat shall be equipped with a seat back that presents a prescribed front surface area located between two horizontal planes, one of which passes th rough the seating reference point while the other is 20 inches above the seating reference point (49 CfR 572.222S5. 1.2) . Each 28 inch high seat back required by IVC 12-807. 1 presents the required area and. according to Manufacturer's certifications, o therwise conforms to each applicable FMVSS requirement.

FMVSS 222 does not specify or limit the amount of the seat back's front surface area which may be located above the higher of the

Ms. E. Z. Jones June 9, 1987 Page Two

two horizontal planes. FMVSS 222 does not specify or limit the maximum distance the top of the seat back may be located above the empty seat cushion, the seating reference point. or any other point, plane, or object. In short, FMVSS 222 does not limit ei ther the maximum area or the maximum height of the seat back installed on a school bus passenger seat.

Please advise that the Illinois statute requiring 28 inch seat backs on passenger seats in Type I school buses (Ill. Rev. Stat.. 1986 Supp., ch. 95 1/2, par. 12-807.1) is not preempted. Because of the effective date of this statute, a prompt reply will b e deeply appreciated.

Sincerely, Melvin H. Smith Governor's Representative for Highway Safety Enclosures

1986 SUPPLEMENT TO REVISED STATUTES 1985 STATE BAR ASSOCIATION EDITION

Laws of the 84th General Assembly from Acts 84--1109 through 84-l431 Convened January 8, 1986 Adjourned July 2, 1986

with INDEX