ID: nht95-1.19

TYPE: INTERPRETATION-NHTSA

DATE: January 9, 1995

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

TO: Barbara Kise

TITLE: NONE

ATTACHMT: Attached to 11/11/94 letter from Barbara Kise to Chief Consul (OCC 10499)

TEXT: Dear Ms. Kise:

This responds to your letter of November 11, 1994 asking whether the air bag in your 1994 Oldsmobile can be disconnected. You explained that you use oxygen for emphysema and chronic bronchitis and are concerned that your lungs might not be able to toler ate the powder ejected if the air bag deploys in a crash.

Standard No. 208, Occupant Crash Protection, requires that cars be equipped with automatic crash protection at the front outboard seating positions. The air bags in your car were installed as one means of complying with that requirement. The removal or deactivation of one of those air bags by a vehicle dealer is prohibited by a provision of Federal law, 49 U.S.C. @ 30122. The provision provides that:

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 veh icle safety standard.

However, in limited situations in which a vehicle must be modified to accommodate the needs of a person with a particular disability or a person's special medical needs, NHTSA has in the past stated that it would consider violations of the "make inoperat ive" prohibition as purely technical ones justified by public need, and that it would not institute enforcement proceedings.

NHTSA has previously stated that chemical and medical tests indicate that an air bag inflation poses no respiratory system hazard, even for persons who are highly susceptible to airborne particles. However, one recent test series of persons with an asth matic condition revealed that prolonged exposure (20 minutes with the windows rolled up) to the atmosphere inside a vehicle after both the driver and passenger air bags have deployed can induce significant asthmatic reactions in some persons. Please not e that these were worst case test conditions unlikely to be found in a real world crash situation.

However, given this test, we would recommend that you consult your doctor to determine whether any significant hazard could result if you were exposed to air bag deployment by-products. I have enclosed a report on this test for you to share with your do ctor to assist in this determination. If you and your doctor decide that the risk to you offsets the potentially life-saving benefits of your air bag, and you wished to have your air bag deactivated, we would regard the deactivation a purely technical v iolation of the "make inoperative" prohibition justified by public need. Accordingly, we would not institute enforcement proceedings against the person who deactivated the air bag. I would recommend that the manufacturer of the vehicle and/or air bag b e consulted on the safest way to disconnect the air bag.

I want to add a caution. The purpose of the "make inoperative" prohibition is to ensure, to the degree possible, current and subsequent owners and users of your vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufact ured. Accordingly, we urge that the air bag be reactivated prior to selling the vehicle. In addition, I strongly encourage you to ensure that every person in your vehicle always uses his or her safety belt.

I hope that this letter resolves your problem. 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

ID: nht95-1.2

TYPE: INTERPRETATION-NHTSA

DATE: January 2, 1995

FROM: Jim Cawse -- Principal Scientist; George Diehl -- Standards Engineer, General Electric

TO: Philip Recht -- Chief Counsel - NHTSA

TITLE: NONE

ATTACHMT: Attached to 2/6/95 letter from Philip R. Recht to Jim Cawse and Fred (George) Diehl (A43; Std. 108)

TEXT: Dear Mr. Recht:

As GE Plastics continues to develop and introduce new products for the Automotive Lighting marketplace, it is extremely important that we continue to adhere to the SAE testing protocol as delineated in SAE J576C, to ensure that our products meet the pass /fail three year natural weathering criteria in South Florida and Arizona. The Design of Experiment (DOE) approach we discussed with you in August and September, 1994, will enable us to generate a much wider spread of data utilizing dependent and indepe ndent variables including haze. Yellowness Index (YI), color shift, thicknesses, formulations, colors, color concentrations, and coatings. This will supply very meaningful results for us and our customers in that we will be able to extract more results from less testing.

As a result of our discussions with NHTSA, AAMVA (now AMECA), and the major automotive and automotive lighting players, we have modified our initial approach to incorporate the important concerns of all parties. These include:

* The thicknesses used in the study will be at least the three minimum as called out by SAE J576C (0.062, 0.125, and 0.250 inches). We have added the 0.040" thickness as well.

* The formulations (base material recipes) used in the study will be commercial formulations and the results of the study will be usable for only those formulations (i.e., no blends of two formulations).

* Each coating will be tested at least once on each formulation.

* Each color candidate will be tested in a low and high color concentration so that interpolations can be made from the test results for color concentrations that fall in between.

* The final list of coatings is being firmed up as of this writing, and actually is being expanded beyond the list presented in previous meetings.

We would appreciate your written affirmation of our approach so that we have a mutual understanding of our new testing directions, and so that our customers are assured of your concurrence.

Sincerely.

ID: nht95-1.20

TYPE: INTERPRETATION-NHTSA

DATE: January 10, 1995

FROM: Paul N. Wagner -- President, Bornemann Products Incorporated

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

TITLE: Ref: Your letter dated December 23, 1994, copy enclosed

ATTACHMT: ATTACHED TO 3/21/95 LETTER FROM PHILIP RECHT TO PAUL N. WAGNER (A43; STD. 207)

TEXT: Dear Mr. Recht:

Thank you very much for your response to my questions concerning seating systems, FMVSS # 207. I would like to expand this inquiry somewhat further, and request a clarification accordingly, so as to eliminate any doubt on the issue of integrated seats.

For definition's sake, an integrated seat will refer to a seating system having the seat belts mounted to the seating structure, with the "D ring" mounting located on the seat back itself (instead of the wall pillar as most vehicles have today).

To clarify the issue of FMVSS # 207 static testing, it is clear that the only adjusted position exception is the vertical movement of nonlocking suspension seats while loads are applied. You have also made it very clear that the seating structure may be tested in any adjusted position, however there is still another question.

In order to be specific, if an integrated seat is tested to FMVSS # 207, when the loads are applied, a rachet-style seat recliner mechanism may not have its adjustment teeth shear during the test, since the seat must maintain its adjusted position, and t he shearing of the recliner teeth is an adjustment change. Is this supposition correct, assuming that the shearing of the recliner's teeth is a change in detent position?

The premise above does allow for normal structure deformation that does not change the detent position.

Lastly, a question that was not proposed earlier concerns continuous engagement, which simply implies that the seat recliner or slides will always be in a locked position, even during adjustment. Some slides and recliners, for adjustment purposes, must be "unlocked," or released, allowing for the adjustment to be made, but then automatically relock when the desired position is achieved; this adjustment method is not considered to be as continuously engaged, since the mechanism is in a released state du ring adjustment.

An apparatus that might be considered to be a continuous engagement device might be a screw-drive mechanism, which can be adjusted by revolution, but would always have a locking feature, even during adjustment (and never be in a released position).

Must a seat recliner or seat slides have "continuous engagement," in order to comply with FMVSS # 207/# 208/# 210 specifications on integrated seating? What this question addresses is the time frame when a seat recliner or seat slide may be disengaged, or released, during use while a vehicle is in motion, since the seat is not locked at these adjustment times, and the seat belt system is attached completely to the seating system.

I apologize for the continued questioning on this issue, and hope for your earliest response.

Thank you very much for your consideration of the above matters, as it is very much appreciated. If I can be of service, please feel free to contact me at your convenience.

Again, our thanks for your help!

ID: nht95-1.21

TYPE: INTERPRETATION-NHTSA

DATE: January 11, 1995

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

TO: Mr. Michael A. Holmes -- Farmington Correctional Center

TITLE: NONE

ATTACHMT: Attached to 12/6/94 letter from Michael A. Holmes to Federico F. Pena (OCC 10596)

TEXT: Dear Mr. Holmes:

This responds to your letter of December 6, 1994, to the Secretary of Transportation, regarding the laws that apply to the manufacture of cars and light trucks. You have a design which you describe as "hydrogen turbine over electric."

The principal law that the Department of Transportation administers that pertains to the construction of motor vehicles is Title 49 United States Code Chapter 301 - Motor Vehicle Safety. Under its authority, we have issued the Federal Motor Vehicle Safe ty Standards and other pertinent regulations. These are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 at an invoiced cost of around $ 25. The title of the volume you want is "49 CFR Parts 400-99 9"; all our regulations are in the 500 series. The Safety Standards are at Part 571. The applicability section of each standard informs the reader as to the types of vehicles to which it applies, such as passenger cars, motorcycles, etc. However, the standards don't differentiate between propulsion sources, and there are no standards that apply to "electric vehicles," or, in your case, "hydrogen turbine over electric."

You should be aware that the Environmental Protection Agency establishes standards for motor vehicle emissions, and that the individual States are permitted to have their own standards in areas where the Department of Transportation has not acted, such a s horns and fog lamps.

If you have any further questions, they should be directed to this Office and we will be pleased to answer them.

Sincerely

ID: nht95-1.22

TYPE: INTERPRETATION-NHTSA

DATE: January 11, 1995

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

TO: Mary M. Mann -- Director, Federal Government Regulations, National Marine Manufacturers Association

TITLE: NONE

ATTACHMT: Attached to 9/15/94 letter from Mary M. Mann to Patrick Boyd (OCC 10484)

TEXT: Dear Ms. Mann:

This responds to your letter of September 15, 1994, to Patrick Boyd of this agency. As he has told you, we did not receive a copy of it until around November 9. You ask for confirmation of your understanding of the conspicuity requirements of S5.7.1.4 of Federal Motor Vehicle Safety Standard No. 108 as they apply to large boat trailers, based upon a meeting you had with him and Taylor Vinson of this Office earlier in the summer. We have paraphrased your concerns for conciseness in our discussion whic h follows.

Side treatment

1. Paragraph S5.1.1.9 allows a double-faced clearance lamp to be mounted at or near the midpoint of wide boat trailers to indicate the extreme width. Paragraph S5.7.1.4, in essence, prohibits retroreflective material from being closer than 75 mm to the edge of any required lamp. While the closet edge of the fender-mounted lamp will be further than 75 mm from the body-mounted retroflective material, when viewed from the side the separation distance vanishes and the material appears next to the lamp. Y ou asked whether this configuration complies with Standard No. 108.

NHTSA regards this configuration as meeting the requirements of Standard No. 108 since the actual physical distance between the closest edge of the lamp and the material is more than 75 mm. But the more important point is that the spacing of side conspi cuity material is a consideration only for required side lamps. The amber lamp in question is a front clearance lamp and the proximity of side facing reflectors has no effect on its visibility from the side.

2. Paragraph S5.7.1.4.1(a) requires that the material cover at least half the trailer length and that it be distributed as even as practicable. For purposes of calculating the 50 percent minimum, you asked whether the following two applications are acc eptable:

a) The sheeting can be on the angled portion of the trailer that is the tongue, regardless of its effect on the reflectivity of the tape when viewed from the side.

NHTSA has traditionally included the trailer tongue in determining the overall length of the vehicle for compliance purposes. Therefore, sheeting applied to the trailer tongue may be used in calculating the 50 percent minimum.

(b) The sheeting need not all be on the same horizontal plane.

This is correct. If a manufacturer applies sheeting to the tongue and fender in fulfilling the 50% minimum obligation, the material need not be at the same height as the other sheeting on the trailer. However, wherever applied, each discrete portion of sheeting must be mounted as horizontal as practicable.

Rear Treatment

1. Paragraph S5.7.1.4.1 specifies the application of three Elements of sheeting to the rear of trailers. However, it excuses container chassis and platform trailers without bulkheads from being equipped with Element 2 treatment, and trailers without un derride protection devices from the requirements of Element 3. You asked whether NHTSA would also excuse boat trailers without bulkheads in the same manner as platform trailers, requiring compliance only with Element 1.

This is correct. The configuration of a boat trailer without a bulkhead is essentially that of a platform trailer, and it may also be exempted from providing Element 2 conspicuity treatment. Due to their low heights, boat trailers are not equipped with rear underride devices, and those trailers without underride devices are excluded from the requirement for providing Element 3 treatment.

2. Element 1 retroreflective material is to be applied "across the full width of the trailer" but under paragraph S5.7.1(a) it need not be applied to "items of equipment such as door hinges and lamp bodies." There is a cross member at the rear which wil l have conspicuity treatment across the full width; however, mounting brackets attached to the cross member obscure portions of the conspicuity treatment. You asked for confirmation that this configuration is in accordance with Standard No. 108.

The exclusionary term "items of equipment" is not limited to the two examples cited in S5.7.1(a), door hinges and lamp bodies. We believe that any equipment to which it is impracticable to apply retroreflective material may be excluded from the requirem ent. You have not included any pictures of the mounting brackets, but this will confirm that NHTSA regards the mounting brackets as "items of equipment" to which the treatment need not be applied, if it is impracticable to apply material to it. In this event, application of conspicuity treatment across the full width of the cross member meets Standard No. 108 even if the subsequently added mounting brackets without treatment obscure part of it.

3. Does NHTSA interpret "full width of the trailer" to include the rear of the fender assembly, so as to require the application of conspicuity treatment to it? You asked for confirmation that the phrase applies only to the rear of the frame.

NHTSA has defined "overall vehicle width" to exclude flexible fender extensions, but it has not adopted a definition for "full width." We understand from your first question, on the centrally mounted clearance lamp, that boat trailer fenders will be loca ted at or near the center of the trailer rather than at the rear. Under this circumstance, we interpret "full width" to include only the vehicle structure at the rear end of the trailer, including its frame and rear cross members.

4. With respect to the relative location of the edge of retroreflective sheeting to the edge of required lamps, S5.7.1.4(b) prohibits white sheeting from being closer than 75 mm to the edge of any required lamp whether red or amber, while S5.7.1.4(c) pr ohibits red sheeting from being closer than 75 mm to the edge of any required amber lamp only. You asked for confirmation "that the edge of the red portion of the sheeting may abut a rear identification lamp but that the white portion of the sheeting mu st be at lease (sic) 3mm (sic) from those lamps." (We believe you mean 3 inches).

This is correct. S5.7.1.4(c) does not prohibit red sheeting from being closer than 75 mm (3 inches) to the red rear identification lamp, and the two may abut. However, S5.7.1.4(b) does not allow the edge of white sheeting to be closer than 75 mm to the e dge of the luminous lens area of the identification lamp.

Finally, you have asked for confirmation of your understanding "that it is not acceptable for trailer manufacturers to give rolls of reflexive sheeting tape and instructions to dealers regarding its application. Rather, the sheeting must be installed at the factory."

We confirm your understanding. The manufacturer of the trailer is required to certify compliance of its product with all applicable Federal motor vehicle safety standards upon its completion and before its delivery for introduction into interstate comme rce. As this certification includes compliance with S5.7 of Standard No. 108, the conspicuity treatment must be applied as part of the manufacturing process and not delegated to dealers.

Sincerely

ID: nht95-1.23

TYPE: INTERPRETATION-NHTSA

DATE: January 11, 1995

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

TO: Ed Irvine -- Midwest Conservation Systems

TITLE: NONE

ATTACHMT: Attached to 9/20/94 letter from Ed Irvine to Phillip Recht

TEXT: Dear Mr. Irvine:

This responds to your letter asking whether a newly manufactured commercial utility trailer must be equipped with an emergency breakaway system. You state that your customer wishes to purchase a trailer without the battery powered breakaway system that comes with the trailer. Instead, you would like to install your solar energized breakaway system. In a December 7, 1994 telephone conversation with Mr. Marvin Shaw of my staff, you stated that the trailers in question are typically small utility traile rs that do not rely on the use of air pressure. I am pleased to have this opportunity to explain the applicable requirements issued by this agency, the National Highway Traffic Safety Administration (NHTSA). You may also wish to request an interpretati on of 49 CFR 393.43 from the Federal Highway Administration (FHWA), which is the agency that issued that regulation.

By way of background information, NHTSA and FHWA are both part of the United States Department of Transportation. Each agency has the authority to issue regulations related to your question. NHTSA, which regulates newly manufactured vehicles, has the a uthority to issue Federal motor vehicle safety standards (FMVSS) which apply to new motor vehicles and new items of motor vehicle equipment. FHWA, which regulates the use of commercial motor vehicles, has the authority to issue Federal Motor Carrier Saf ety Regulations (FMCSRs), which are applicable to commercial motor vehicles and their operators. We have referred your letter to the Federal Highway Administration's (FHWA) Office of Motor Carrier Standards, since that agency issued 49 CFR 393.43.

While NHTSA has the authority to issue FMVSSs, the agency has not issued any FMVSS that would directly affect the braking performance of a small utility trailer, unless the trailer relies on air pressure. Therefore, if the trailers in question are not a ir braked vehicles, then you would not need to certify that such a trailer's braking performance complies with an FMVSS, since no applicable FMVSS exists.

Please note that your solar energized trailer breakaway system would be considered "motor vehicle equipment" within the meaning of the statute administered by NHTSA. If this system contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992. If you wish to contact someone in the FHWA's Office of Chief Counse l concerning the motor carrier standards, please call Charles Medalen at (202) 366-1354.

Sincerely,

Philip R. Recht

ID: nht95-1.24

TYPE: INTERPRETATION-NHTSA

DATE: January 12, 1995

FROM: Jeffrey Echt -- President, Saline Electronics, Inc.

TO: Chief Counsel -- NHTSA

TITLE: In Re: Saline Electronics

ATTACHMT: ATTACHED TO 3/2/95 LETTER FROM PHILIP R. RECHT TO JEFFREY ECHT (REDBOOK(4)); STD. 108 AND 30122 (6)

TEXT: Saline Electronics, Inc., has developed and applied for a United States patent on a new type of automotive stop lamp system. During normal braking, this new system permits the stop lamps, which are original equipment, to operate in a steady burning mode . However, during and after episodes of high, braking-induced deceleration, the system flashes the stop lamps it controls on and off. The flashing stop lamps could be the original equipment stop lamps required by Federal Motor Vehicle Safety Standard ( FMVSS) No. 108 (49CFR571.108), or one or more lamps in addition to those required by FMVSS No. 108.

The purpose of this letter is to obtain clarification of the position of the National Highway Traffic Safety Administration (NHTSA) with respect to our new system. We realize that individual states may regulate such devices, causing non-Federal limitati ons upon its use.

Apparently, deceleration warning systems, such as ours, are not specifically mentioned in FMVSS No. 108. Yet, in an interpretative letter, dated July 30, 1993, to the Virginia Transportation Research Council, the NHTSA stated:

Virginia could permit the use of a red or amber original equipment deceleration warning system operating in a steady burning mode through either original equipment lamps or supplementary ones.

In the same interpretative letter, you also indicated that "unless otherwise provided by Section 5.5.10 [of FMVSS 108], all original motor vehicle lighting equipment, whether or not required by Standard No. 108, must be steady burning in use."

These interpretations suggest room for experimentation by governmental agencies with our new system, and also the possibility of aftermarket products designed for installation by the individual motor vehicle owners. Hence, we seek your opinion on the fo llowing questions, based solely upon Federal law:

1. May states specifically permit (by statute or regulation) the use of deceleration warning systems which are neither original equipment nor replacements for original equipment? For example, may states specifically permit the use of an aftermarket dec eleration warning system which a) permits all original equipment stop lamps required by FMVSS No. 108 to operate in a normal steady burning mode, and b) flashes one aftermarket center-mounted stop lamp or two side-mounted stop lamps, on vehicles not requ ired to be so equipped?

2. In the absence of state regulation of flashing deceleration warning systems, is it lawful for individuals, states or municipalities to install such systems on their vehicles, provided they do not alter the steady burning operation of the original equ ipment stop lamps required by FMVSS No. 108? For example, may mass transist districts operate busses with flashing deceleration warning lamps, if the systems are installed by their own mechanics and the steady burning operation of the original equipment stop lamps is not altered? May individuals install such equipment on their own vehicles?

3. May individuals, states or municipalities, who are not manufacturers, distributors or motor vehicle repairs businesses, lawfully install flashing deceleration warning systems which would prevent the original equipment stop lamps from steadily burning during and after episodes of high, braking-induced deceleration? For example, may a mass transit district install a deceleration warning system which would flash some or all of the original equipment stop lamps during and after rapid deceleration due t o hard braking, if the system were installed by its own mechanics?

We know that the NHTSA receives many requests for interpretation and petitions for rule making with regard to vehicle lighting. We appreciate your consideration of our request and thank you for your prompt action. Saline Electronics, Inc., has no objec tion to this letter and your response becoming a part of the public record.

ID: nht95-1.25

TYPE: INTERPRETATION-NHTSA

DATE: January 13, 1995 EST

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

TO: Melinda Dresser -- Manager Contracts/Transportation, Carlin Manufacturing, Inc.

TITLE: NONE

ATTACHMT: Attached to 11/28/94 letter from Melinda Dresser to Mary Versailles

TEXT: Dear Ms. Dresser:

This responds to your letter of November 28, 1994, concerning seats with swivel bases. You noted that, in a November 25, 1992 letter to Ms. Frances Parton, we stated that there is no express prohibition in Federal law against installing a seat with a sw ivel base. You asked for a "current written determination" of that issue. This letter confirms that there is still no express prohibition in Federal law against installing a seat with a swivel base.

As explained in our November 1992 letter, the National Highway Traffic Safety Administration is authorized to issue Federal Motor Vehicle Safety Standards for new motor vehicles and new items of motor vehicle equipment (49 U.S.C. @ 30101 et seq.). Manuf acturers are required to certify that their products meet all applicable safety standards.

A manufacturer must consider three safety standards if a seat with a swivel base is installed in a vehicle: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, and Standard No. 210, Seat Belt Assembly Anchorages. Standard No. 207 establishes strength and other performance requirements for vehicle seats. Standard No. 208 sets forth requirements for occupant protection at the various seating positions in vehicles. Standard No. 210 establishes strength and location requirement s for seat belt anchorages. Nothing in these standards expressly prohibits a seat with a swivel base. Instead, a seat with a swivel base must comply with the same standards as other seats.

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

ID: nht95-1.26

TYPE: INTERPRETATION-NHTSA

DATE: January 16, 1995

FROM: Ken Liebscher -- President/Director, Electric Car Company

TO: Administrator, NHTSA

TITLE: None

ATTACHMT: ATTACHED TO 2/13/95 LETTER FROM PHILIP R. RECHT TO KEN LIEBSCHER (A43; PART 555)

TEXT: The Electric Car Company Inc. is situated at 401 Lincoln St., Box 618, Everson WA 98247. It was incorporated in the State of Nevada.

This is a petition to be exempted from six Federal motor vehicle safety standards for passenger cars that we manufacture using electric power, the MI Series Electric Car. The basis of the petition is that compliance with the standards will cause substan tial economic hardship. The standards for which the exemptions are requested are:

1. Standard # 201, Occupant protection in interior impact. 2. Standard # 203, Impact protection for the driver from the steering control system. 3. Standard # 204, Steering control rearward displacement. 4. Standard # 208, Occupant crash protection. 5. Standard # 214, Side door strength. 6. Standard # 216, Roof crush resistance.

The MI-6 (pictured) is constructed from Dupont Kevlar composite fiberglass material and according to the manufacturer, is four times the strength as conventional fiberglass and we feel confident that it will conform to all applicable Federal motor vehicl e safety standards. However, thirty-mile per hour barrier crash testing is needed to determine the actual energy absorbing characteristics. All component parts of the MI-6 are Original Equipment Manufacturer products and, as such, in compliance of Nati onal Safety Standards. The restraint systems were also purchased from OEM and are installed as per standards.

We request an exemption of two years after which we expect to certify compliance with these standards. To require immediate compliance would create substantial economic hardship. I have enclosed the last audited year end financial statement as well as the last unaudited quarterly statement. The cost for "one set" of testing for the standards on one vehicle is approximately $ 30,000, exclusive of the costs of delivering the vehicle to the test facility. An exemption would permit vehicle sales and the generation of cash permitting testing while the exemptions are in effect. The Company expects to produce six vehicles for demonstration purposes and 100 limited edition vehicles in the first year. A denial of the petition would delay the Company's pro duction while we attempt to test for conformance, but the costs of testing would require a retail price of $ 50,000 for an MI-6. We doubt that we could sell a car at this price, and that, accordingly, we would be forced out of business in the year follo wing a denial of this petition.

Granting of the exemption would be in the public interest and consistent with the National Traffic and Motor Vehicle Safety act by helping to relieve environmental problems associated with automotive transportation. The Company believes that we can make a very positive contribution to the country's clean transportation needs quickly and effectively.

(FOLLOWING ATTACHMENTS OMITTED: 1. MI-6 ELECTRIC AUTOMOBILE SPECIFICATIONS AND TECHNICAL DATA; 2. E.T.C. INDUSTRIES QUARTERLY REPORT AND FINANCIAL STATEMENTS)

ID: nht95-1.27

TYPE: INTERPRETATION-NHTSA

DATE: January 17, 1995

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

TO: The Honorable Connie Mack -- United States Senate

TITLE: NONE

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

TEXT: Dear Senator Mack:

Thank you for your letter of December 12, 1994, addressed to the Intergovernmental & Consumer Affairs office of this Department. You forwarded to us a letter from your constituent, Mr. Howard J. Levy, Vice-President, Used Tire International, of Deerfiel d 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 juri sdiction 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