Interpretation ID: nht95-1.28

TYPE: INTERPRETATION-NHTSA

DATE: January 17, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: The Honorable Bob Graham -- United States Senate

TITLE: NONE

ATTACHMT: Attached to 12/15/94 letter from Bob Graham to John Womack; Also related to 1/17/95 letter from Philip Recht to Connie Mack (A43; Std. 109); Also related to 12/12/94 letter from Connie Mack to the DOT

TEXT: Dear Senator Graham:

Thank you for your letter of December 15, 1994, addressed to John Womack of this office. You forwarded to us a letter from your constituent, Mr. Howard Levy, Vice-President, Used Tire International, of Deerfield Beach, Florida.

Mr. Levy expressed concern in his letters to you and this agency, the National Highway Traffic Safety Administration (NHTSA) about a proposed bill in the Puerto Rico Senate which would require that used tires imported into Puerto Rico have not less than 5/32 inch tread depth and which would impose a tax of $ 10 per tire on such imports. Mr. Levy is concerned that the proposed bill would mean the end of the used tire industry on the island. In his letter to this agency, he asked "Does NHTSA have jurisd iction over these laws in Puerto Rico or does the Puerto Rican Senate control the regulations over highway safety," and requested our help in this matter.

We have carefully evaluated Mr. Levy's concerns. As discussed in our enclosed response to Mr. Levy, however, we have concluded that the laws and regulations that we administer will not be of help to him. Since our opinion is limited to consideration of the laws and regulations that we administer, we have suggested to Mr. Levy that he may wish to consult a private attorney concerning whether the proposed Puerto Rico bill raises other legal issues that are relevant to his concerns.

Sincerely, Philip R. Recht

Enclosure:

JAN 17 1995

Mr. Howard J. Levy Used Tire International 837 S.E. 8th Avenue, Suite 202 Deerfield Beach, FL 33441

Dear Mr. Levy:

This responds to your letter to Dr. Ricardo Martinez, Administrator of the National Highway Traffic Safety Administration (NHTSA), referring to a bill before the Puerto Rico Senate. The bill would require all used tires imported into Puerto Rico to have a minimum of 5/32 inch tread depth and would impose a tax of $ 10 per tire.

You stated that the proposed requirement is 3/32 inch more than is "required by U.S. law," and that if the proposal became law it "would mean the end of the Used Tire industry on the island." You asked, "Does the NHTSA have jurisdiction over these laws i n Puerto Rico or does the Puerto Rican Senate control the regulations over highway safety," and requested this agency's help in this matter.

I am pleased to have this opportunity to explain the laws and regulations that we administer. As discussed below, however, those laws and regulations will not be of help to you with respect to your concerns about the proposed Puerto Rico law.

By way of background information, NHTSA is authorized by Federal law (Chapter 301 of Title 49, U.S. Code (hereinafter referred to as the Safety Act)) to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle eq uipment. The Safety Act prohibits any person from manufacturing, selling or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. It also prohibits commercial businesses from rendering inoperative the compliance of a vehicle or item of equipment with a safety standard.

NHTSA's safety standards do not, however, apply to used vehicles or equipment. (I note that if a used tire is imported as motor vehicle equipment, the tire must have complied with the safety standards at the time of its manufacture.) Instead, the individ ual states have the authority to regulate used vehicles and equipment. Also, the Office of Motor Carriers within the Federal Highway Administration has the authority to regulate commercial vehicles and equipment operated in interstate commerce. (Your s tatement that the proposed Puerto Rico tread depth requirement is 3/32 inch more than is "required by U.S. law" appears to be referring to a requirement specified by the Office of Motor Carriers, Federal Highway Administration, for commercial vehicles. See 49 CFR @ 393.75(c)).

I will now turn to your question concerning whether NHTSA has jurisdiction over the laws being considered by the Puerto Rican Senate. The Safety Act includes one provision which addresses Federal preemption of state laws. That provision (49 U.S.C. @ 30 103(b)) specifies that when a Federal motor vehicle safety standard is in effect, a state (including Puerto Rico) may maintain a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is i dentical to the Federal standard. (States may, however, specify higher standards for vehicles or equipment obtained for their own use.) Therefore, if a state specified a particular requirement for new tires that was different from one specified for the same aspect of performance as a Federal motor vehicle safety standard, the state law would be preempted. Moreover, a state law could be impliedly preempted if it frustrated the purposes of the Safety Act.

While we have not reviewed the specific text of the Puerto Rico bill, we do not believe the Safety Act is relevant to the particular concerns you raise in your letter. In order for a state law to be preempted under 49 U.S.C. @ 30103(b), it would have to apply to new vehicles or equipment. However, you are concerned about state requirements for used tires, not new tires. A state law which applied to used vehicles or equipment could be impliedly preempted if it had the same practical effect as a state law for new vehicles/equipment that would be preempted under 49 U.S.C. @ 30103(b), i.e., the law in question had the practical effect of requiring vehicles/equipment to be designed in a certain manner. However, neither a general tax on imported used tir es nor a tread depth requirement that applied only to imported used tires would have any practical effect on the design of new tires.

Based on consideration of the laws and regulations that we administer, we have therefore concluded that the proposed bill that you describe would not raise any preemption issues relevant to the importation of used tires. Since this opinion is limited to consideration of the laws and regulations that we administer, you may wish to consult a private attorney concerning whether the proposed Puerto Rico bill raises other legal issues that are relevant to your concerns.

I hope this information is helpful to you. Should you have any further questions or need additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel