ID: 10443

Mr. Jerry G. Sullivan, P.E.
The Braun Corporation
Post Office Box 310
Winamac, IN 46996

Dear Mr. Sullivan:

This responds to your letter addressed to Mary Versailles of this office in which you asked whether, under Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release, the driver's side front door area on non- school buses with a gross vehicle weight rating (GVWR) less than 10,000 pounds could be credited toward the unobstructed openings requirement of section S5.2.

The opening paragraph of section S5.2, Provision of emergency exits, requires buses other than school buses to provide unobstructed openings for emergency exits which collectively amount, in square inches, to 67 times the number of designated seating positions on the vehicle. The same paragraph also requires that at least 40 percent of the total unobstructed opening area must be provided on each side of the bus. No single emergency exit, however, can be credited with more than 536 square inches of the total area requirement.

With regard to non-school buses with a GVWR less than 10,000 pounds, section S5.2.2(c) provides that such buses may meet the emergency exit requirements by means of doors. Accordingly, nothing in the standard prohibits crediting the driver's side door as an emergency exit so long as it meets all emergency exit requirements of the standard, including the release mechanism and 40 percent requirements, up to a maximum credit of 536 square inches.

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 ref:217 d:1/9/95

ID: 10444

Ms. Jean Moffitt
17311 Equestrian Trail
Odessa, FL 33556

Dear Ms. Moffitt:

This responds to your letter to this office in which you stated that your son, a 9th grade student, rides a 65-passenger school bus in which he must sit on the edge of the seat such that only half his body is on the seat.

We recently addressed this issue in an October 26, 1994, letter to Ms. Debra Platt of Stuart, Florida, and have enclosed a copy of our response for your information. We have also enclosed a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety, a copy of a report prepared by this agency entitled School Bus Safety Report, and a copy of a Report Summary prepared by the Transportation Research Board in May, 1989. The latter two reports give a good overview of the issues connected with school bus safety, and they and Guideline 17 contain recommendations to the various states in developing their own pupil transportation safety programs.

I hope the enclosed information is helpful to you. Should you have any other 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

Enclosures

ref:222 d:2/3/395

ID: 10456

Ms. Darlene Skelton
President
National Institute of Emergency Vehicle Safety, Inc.
17155 Robey Drive, Suite 101
Castro Valley, CA 94546-3852

Dear Ms. Skelton:

This responds to your letter to Mr. Barry Felrice, Associate Administrator for Safety Performance Standards of this agency, in which you asked the applicability of our Federal motor vehicle safety standards (FMVSS) to three specific scenarios. I apologize for the delay in responding.

By way of background information, under the provisions of Chapter 301 of Title 49 U. S. Code, the National Highway Traffic Safety Administration (NHTSA) has authority to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. All new motor vehicles and new items of motor vehicle equipment must comply with all applicable FMVSSs in effect on the date of manufacture, and manufacturers must certify such compliance by affixing to each vehicle a manufacturer's certification label. Among other requirements, the certification label must contain the gross vehicle weight rating (GVWR) of each vehicle and the gross axle weight rating (GAWR) of each axle on the vehicle, identified in order from front to rear.

a. Your first question referred to a situation in which the GVWR exceeded the tire load ratings. Specifically, you alluded to the case of a fire truck with four rear mounted tires, each rated at 7,000 pounds (lb), that were installed on a 31,000 lb. axle. You stated that the final stage manufacturer received a letter from the tire manufacturer raising the tire inflation pressures from 100 to 110 or 115 pounds per square inch and limiting the driving to not more than 7 miles at a speed not to exceed 55 miles per hour. You asked whether such practices violated the FMVSSs.

Paragraph S5.1.2 of FMVSS No. 120, Tire selection and rims for motor vehicles other than passenger cars, provides in pertinent part:

[T]he sum of the maximum load ratings of the tires fitted to an axle shall be not less than the gross axle weight rating (GAWR) of the axle system as specified on the vehicle's certification label required by 49 CFR part 567.

In other words, the load ratings of the tires on motor vehicles other than passenger cars must be at least equal to the weight ratings of the axles on which the tires are installed. The standard makes no provision for changing the tire inflation pressures or driving at restricted speeds or limiting the distances the vehicle may travel to compensate for discrepancies in the load and weight ratings.

The facts you provided us, however, are not sufficient on which to base an opinion as to whether there has been a noncompliance in that instance. We would have to know all the facts and circumstances relevant to the tire manufacturer's alleged actions, including input from the manufacturer itself, before we could arrive at a conclusion in that regard.

b. Your second question referred to vehicles in which axles had been rerated. You cited a situation in which a manufacturer increased the GAWR of fire trucks because fire trucks do not cycle as much as tractor trailer trucks. Thus, the manufacturer increased the GAWR of fire trucks from 22,000 to 24 000 lbs.

NHTSA defines the GAWR as:

[T]he value specified by the vehicle manufacturer as the load-carrying capacity of a single axle system, as measured at the tire-ground interface (emphasis added).

A manufacturer's assigning different GAWRs to axles on different vehicles is not prohibited by our FMVSSs. In fact, manufacturers routinely assign different GAWRs and GVWRs to different vehicles based on the various equipment options and add-ons, particularly with respect to emergency vehicles. In any case, NHTSA expects that the GAWR(s) stated on the vehicle's certification label correctly reflects the manufacturer's certification that the vehicle complies with all FMVSSs applicable to that vehicle.

c. Your final question asked whether it was a violation of the FMVSS for manufacturers to take the air supply for their vehicle horns off the air supply for the vehicle's brakes. The answer is, in general, no.

FMVSS No. 121, Air brake systems, specifies performance and equipment requirements for braking systems on motor vehicles other than passenger cars that are equipped with air brake systems. The standard does not prohibit the use of air pressure from the brake air supply for the horn, but doing so could affect the vehicle's compliance with the standard.

If the horn operating off the brake air supply is installed as original equipment on a new vehicle, the manufacturer is required to certify that the vehicle complies with all applicable FMVSSs, including FMVSS No. 121. If the horn is added to a previously certified new vehicle, the person so modifying the vehicle would be an alterer who would be required to certify that, as altered, the vehicle continues to comply with all of the FMVSSs affected by the alteration. If the horn were installed on a used vehicle by a vehicle repair business, that business would not be required to attach a label or recertify the vehicle. It would, however, have to make sure that it did not knowingly make inoperative any part of a device or element of design installed on or in the vehicle in compliance with an applicable FMVSS.

In addition, hoses connected to air horns could be subject to Safety Standard No. 106, Brake hoses. They are subject to the standard if they transmit or contain the brake air pressure used to apply force to a vehicle's brakes, i.e., if a failure of the hose would result in a loss of air pressure in the brake system. If this would be the case, the hoses are "brake hoses" and must comply with Standard No. 106. If a check valve or other device is used to prevent loss of pressure, then the hose would not contain or transmit the air pressure and would not be required to comply with the brake hose standard.

I hope this information is helpful to you. Should you have any further questions or need any 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

ref:106#120#121#567 d:4/10/95

ID: 10462-2

Mr. John E. Getz
Director, Mobile Products Engineering
Ellis & Watts
4400 Glen Willow Lake Lane
Batavia, Ohio 45103

Dear Mr. Getz:

This responds to your letter asking whether certain operations that your company performs on used trailers result in the trailers being considered "newly manufactured" for purposes of the Federal motor vehicle safety standards. You stated that you sometimes change the finishing and equipment of a used trailer for a new application. As an example, you stated that you recently took a 10- year old trailer, stripped the inside, and refinished it as a mobile marketing facility. You also stated that in some cases you may cut a hole in the side and install a door for a specific application. In a telephone conversation with Dorothy Nakama of my staff, you indicated that you have also changed trailers by adding heating or air conditioning units, or making the trailer usable as an auditorium.

In your letter, you asked whether the trailers would be considered "newly manufactured" if the running gear, VIN and the basic trailer structure do not change, but the ownership does change. You asked this question in light of the fact that change of ownership is relevant under 49 CFR part 571.7(f) in determining whether a trailer manufactured from new and used components is considered newly manufactured. As discussed below, it is our opinion that the operations you describe do not result in the trailers being considered newly manufactured.

By way of background information, the National Highway Traffic Safety Administration issues safety standards for new motor vehicles and new motor vehicle equipment. The agency does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles or equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

Section 49 CFR part 571.7(f) reads as follows:

Combining new and used components in trailer manufacture. When new materials are used in the assembly of a trailer, the trailer will be considered newly manufactured for

purposes of [the safety standards], unless, at a minimum, the running gear assembly (axle(s), wheels, braking and suspension) is not new, and was taken from an existing trailer--

(1) Whose identity is continued in the reassembled vehicle with respect to the Vehicle Identification Number; and

(2) That is owned or leased by the user of the reassembled vehicle.

This section only applies when new and used materials are used in the "assembly" of a trailer. It is our opinion that the operations that you describe, i.e., where the running gear, VIN and the basic trailer structure do not change, do not constitute trailer assembly. Therefore, this section, including its provision concerning transfer of ownership, does not apply. We consider your operations to be in the nature of repair or refurbishment of a used trailer, which does not result in the trailer being considered newly manufactured.

I hope this information is helpful. If there are any questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:571 d:3/2/95

ID: 10463

Mariano Garcia, Esq.
Ricca & Whitmire, P.A.
Clearlake Plaza - Suite 800
500 South Australian Avenue
West Palm Beach, FL 33401

Dear Mr. Garcia:

This responds to your request for an interpretation whether the Kawasaki Mule KAF 450-B1, with a top speed of 25 miles per hour, is a motor vehicle. You describe the Mule as an "off-road" light utility vehicle, and enclose a photocopy of what appears to be a Kawasaki brochure describing the Mule.

The Mule is similar to two on and off-road capable vehicles, reviewed by NHTSA for a determination whether the vehicles are motor vehicles. Enclosed are two interpretation letters, one to Mr. Matthew J. Plache, dated December 3, 1991, and one to Mr. Hiroshi Kato dated October 31, 1988. Both letters addressed vehicles which could attain a top speed of 25 miles per hour and were not intended by their manufacturers to be used on the public roads.

Both letters describe five criteria which NHTSA applies when determining whether a vehicle with on and off-road capability is a motor vehicle. We do not have sufficient information to apply the five criteria to the Mule. However, we believe that if the facts are known, the criteria are easily applied, and a determination whether the Mule is a motor vehicle may be made.

I hope this information is helpful. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at(202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

2 Enclosures

ref:VSA d:1/17/95

ID: 10464tra

Ms. Lois Castillo
Travel Tray, Inc.
P.O. Box 395
Pleasant Grove, UT 84062

Dear Ms. Castillo:

This responds to your letter to Mr. John Womack of my staff, asking about safety regulations for the "Travel Tray," a product you wish to manufacture. The brochure you enclosed with your letter states that the Travel Tray is a plastic tray that is designed to lay across the top of a child's car seat. The tray attaches to the car seat by the use of straps with "velcro" ends. Children would use the tray to "play on with their toys or to eat on."

The National Highway Traffic Safety Administration (NHTSA) has the authority to issue safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA has used its authority to issue Federal Motor Vehicle Safety Standard (FMVSS) No. 213, "Child Restraint Systems," to reduce the number of children killed or injured in motor vehicles. (This standard is found in volume 49 of the Code of Federal Regulations, section 571.213.) Each new child restraint system, which includes "car seats," must be certified as complying with the requirements of Standard No. 213. This means that, if the Travel Tray were marketed as part of a car seat, the car seat would be required to comply with all of the requirements of the standard, with the tray attached.

Section S5.2.2.2 of Standard No. 213 prohibits any fixed or moveable surface in front of the child except for surfaces that adequately restrain a test dummy in a 20 mile per hour test. This requirement is to prevent items that could injure a child in a crash from being installed where they could be impacted by a child. Your tray is incapable of restraining a test dummy in a crash. Since the tray is unable to restrain the dummy, a car seat with the tray would not comply with Standard No. 213. In other words, a manufacturer of a car seat could not sell such a tray as a part of its child seating system.

If your tray is manufactured and marketed separately to consumers who own child seats, the tray would not be required to comply with the requirements of Standard No. 213. The standard applies to new child restraint systems, or car seats, that are designed to restrain, seat or position children. Your tray sold by itself would not be designed to restrain, seat or position children and thus would not be subject to this standard.

While no FMVSS applies to the Travel Tray, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. ''30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety- related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 49 U.S.C. section 30122, which states: "A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative ... any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard ...." It appears unlikely from the nature of your product that it would be placed in vehicles by commercial businesses instead of car seat owners. However, if your product were to be installed by persons in the categories listed in section 30122, that would constitute a potential violation of the "make inoperative" provision of section 30122.

The prohibition of '30122 does not apply to individual owners who install equipment in their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages consumers not to degrade the safety of their vehicles or equipment.

I hope this is helpful. If you have any other questions, please contact Ms. Deirdre Fujita of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure

ref:213 d:1/9/95

ID: 10466

Mr. Clay F. West
Garvey, Schubert & Barer
Eighteenth Floor
Second & Seneca Building
1191 Second Avenue
Seattle, WA 98101-2939

Dear Mr. West:

This responds to your letter of November 1, 1994, requesting information on any rules or standards applicable to a "windshield cleaning device." As your letter describes, "(t)he product is a clear strip which is adhered to the windshield of an automobile. The action of the wiper blades passing over the device causes the wiper blades to function more effectively."

I am enclosing a copy of a May 29, 1992 letter to Mr. John J. Jacoby concerning a similar device. I believe this letter contains the information you need. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosures

ref:104 d:11/9/94

ID: 10469

Mr. Donald T. Hoy
Senior Marketing Manager
Clean Air Partners
17301 Rimrock Drive
Golden, CO 80401

Dear Mr. Hoy:

This responds to your letter addressing this agency's regulations about converting school buses to run on a blended fuel combining diesel and compressed natural gas (CNG) or liquefied natural gas (LNG). You stated that your company manufactures a conversion system that bolts on the original equipment manufacturer's diesel engine. While the diesel engine system remains intact and operates as designed during the dual fuel cycle, your conversion system serves to reduce the flow of diesel fuel to the engine and substitutes natural gas in its place. You further state that the system automatically reverts back to 100% diesel with no interruption in driveability if the supply of CNG is depleted.

You asked two questions about converting diesel powered school buses to dual fuel school buses that run on both conventional diesel fuel and alternative fuels such as CNG or LNG. You first ask whether there are any Federal regulations preventing the conversion of a school bus from diesel to a dual fuel school bus. You then ask if there is any significance as to when the conversion system is installed on a school bus with regard to vehicle certification.

Before answering your specific questions, let me provide you with background information about the National Highway Traffic Safety Administration (NHTSA) and our regulations. NHTSA is authorized by Congress to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and items of equipment. NHTSA has used this authority to issue FMVSSs to ensure the fuel system integrity of vehicles powered by diesel fuels and those powered by CNG. Specifically, FMVSS No. 301 regulates the fuel system integrity of gasoline and diesel powered light vehicles with a gross vehicle weight rating (GVWR) under 10,000 pounds and all gasoline and diesel powered school buses regardless of GVWR. In addition, FMVSS No. 303 regulates the fuel system integrity of CNG light vehicles and all school buses. Finally, FMVSS No. 304 regulates the integrity of CNG fuel containers. While FMVSS No. 301 has been in effect since the 1970s, the final rule establishing FMVSS No. 304 becomes effective on September 1, 1995 and the final rule establishing FMVSS No. 303 becomes effective on March 27, 1995. The agency has not issued any FMVSS applicable to vehicles powered by LNG.

In response to your first question, no FMVSS or other NHTSA regulation prohibits the conversion of a diesel school bus to a dual fuel school bus. Nevertheless, FMVSS No. 301 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of fuel leakage from the fuel system after being subjected to crash testing. Similarly, FMVSS No. 303 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of pressure drop in the fuel system after being subjected to crash testing. Each school bus with a GVWR under 10,000 pounds is subjected to frontal, rear, and lateral barrier crash tests and each school bus with a GVWR of 10,000 pounds or more is subjected to a moving contoured barrier crash test. With respect to a dual fuel vehicle, NHTSA explained in the final rule that "NHTSA has decided to require only one test on dual-fuel and bi-fuel vehicles that permits the amount of gaseous leakage specified in the CNG standard plus the amount of liquid leakage specified in Standard No. 301." (59 FR 19648, April 25, 1994.) In other words, after being subjected to the specified test crash or crashes, a dual fuel school bus may not leak more than the amount of fuel leakage permitted in FMVSS No. 301 plus the amount permitted in FMVSS No. 303.

In response to your second question, vehicle fuel system conversions are addressed in certain NHTSA provisions, whose application depends on when the work is done and who does the conversion. Under the statute and NHTSA's regulations, the first consumer purchase is the critical event by which certain responsibilities are specified. If your conversion system were installed as original equipment on a new vehicle, the vehicle manufacturer would be required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's, including the CNG fuel system standard once that FMVSS takes effect. If your conversion system were added to a new, previously-certified vehicle (e.g., a new completed school bus), the person who adds the system would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. This means that if you convert a school bus prior to the first consumer purchase, then you would be responsible for certifying that the school bus as manufactured conforms to all applicable FMVSS, including FMVSS No. 301 and, once FMVSS No. 303 and 304 take effect, those standards as well.

If you convert a bus after the first consumer purchase, you would not have any certification responsibilities under NHTSA's regulations. However, an installer that is a vehicle manufacturer, distributor, dealer or repair business would have to ensure that it did not knowingly make inoperative, in whole or in part, the compliance of the vehicle with any applicable safety standard. Since all school buses are currently required to comply with FMVSS No. 301, any aspect of the conversion to a dual fuel school bus must not make the diesel school bus more vulnerable to diesel fuel leakage or otherwise impair the school bus' fuel system integrity. After the September 1, 1995 effective date for FMVSS No. 303, any aspect of your conversion to a CNG/diesel school bus to a dual fuel school bus must not make the school bus more vulnerable to fuel leakage.

The "make inoperative" provision does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with the FMVSS's. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles.

In addition, manufacturers of motor vehicles and items of motor vehicle equipment are subject to the statutory requirements concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufacturer of the container or vehicle determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

With regard to additional requirements for vehicle conversions, you should also note that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For information about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel ref:303 d:2/27/95

ID: 10478

Mr. James D. Murphy, Jr.
8011 S. Cook Way
Littleton, CO 80122

Dear Mr. Murphy:

This responds to your request for an interpretation whether a vehicle with two main wheels and two auxiliary wheels may be considered a "motorcycle." As explained below, the answer is yes.

Your letter describes your vehicle's design as having two main wheels, and left and right side auxiliary wheels that are elevated off the ground. You informed Dorothy Nakama of my staff that the auxiliary wheels are to facilitate vehicle turning, when no more than three wheels would touch the ground.

NHTSA defines "motorcycle" at 49 CFR Section 571.5(b) as:

a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.

In a previous letter, NHTSA stated that a two wheeled vehicle whose auxiliary wheels are used only for stabilization in turns is considered a "motorcycle" since the vehicle is designed to travel on not more than three wheels in contact with the ground. (See enclosed letter of June 11, 1986 to the NY State Department of Motor Vehicles.) Since your vehicle is also designed to travel with at most three wheels in contact with the ground, we would consider your vehicle a "motorcycle" for purposes of compliance with the Federal Motor Vehicle Safety Standards.

I hope this information is helpful. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure ref:571 d:1/3/95

ID: 10491

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 in 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 equipment. 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 individual 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 statement 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. '30103(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 identical 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 tires 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

ref:109#119 d:1/17/95