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

ID: nht95-1.29

TYPE: INTERPRETATION-NHTSA

DATE: January 17, 1995

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

TO: Mariano Garcia, Esq. -- Ricca & Whitmire, P.A.

TITLE: NONE

ATTACHMT: Attached to 10/24/94 letter from Mariano Garcia to NHTSA Chief Council (OCC 10463); Also attached to 12/3/91 letter from Paul Jackson Rice to Matthew Plache (VSA 102(3)); Also attached to 10/31/88 letter from Stephen Wood/Erika Jones to Hiroshi Kato

TEXT: 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. Hir oshi 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,

ID: nht95-1.3

TYPE: INTERPRETATION-NHTSA

DATE: January 3, 1995

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

TO: James D. Murphy, Jr.

TITLE: NONE

ATTACHMT: Attached to 11/1/94 letter from James D. Murphy, Jr. to Mr. Recht (Occ 10478); Also attached to 6/11/86 letter from Erika Jones to Terry W. Wager

TEXT: 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 n o 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 complia nce 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

ID: nht95-1.30

TYPE: INTERPRETATION-NHTSA

DATE: January 17, 1995

FROM: Nick Smith -- Member of Congress, U.S. House Of Representatives

TO: Regina Sulliven -- Director, Congressional Affairs, U.S. Department of Transportation

TITLE: Federal Regulations for public schools and home schools transporting students by van

ATTACHMT: ATTACHED TO 2/27/95 LETTER FROM PHILIP R. RECHT TO NICK SMITH (REDBOOK (2)); PART 571.3)

TEXT: Dave Globig from Spring Arbor College in my district contacted my office regarding his concerns with regulations affecting the transportation of students in vans as opposed to buses.

It is his understanding that federal law will not allow certification of any vans made after 1995 and after, 1997, will not allow any vans to be certified. I would appreciate it if you could advise me as to what federal regulations pertain to this iss ue.

Obviously, Mr. Globig is concerned with the prospect of schools purchasing expensive vehicles and then, later, finding out that they can not be certified.

Thank you for your attention to this matter. Please direct any questions or correspondence to my Charlotte district office at the address and phone number listed below.

ID: nht95-1.31

TYPE: INTERPRETATION-NHTSA

DATE: January 17, 1995

FROM: Randall B. Clark -- A Concerned Citizen

TO: Office of Vehicle Safety Compliance

TITLE: None

ATTACHMT: ATTACHED TO 2/16/95 LETTER FROM PHILIP R. RECHT TO RANDALL B. CLARK (A43; STD. 108; VSA 30122(6)

TEXT: I respectfully request clarification on the following paragraphs S5.1.1.27(a), Table III & Table IV, located in the "Code of Federal Regulations".

I contend the required Motor Vehicle Lighting Equipment requirements are the minimum requirements ONLY and do not state that this is the maximum stop lamps allowed on the back of any automobile.

In other words, my automobile has the normal two stop lamps and has a spoiler with a stop lamp built into it. The car also has a stop lamp mounted inside the back window which is not currently hooked up due to the fact that "Subaru of America" thinks the procedure is against the law. They have cited the above paragraphs & Tables as their authority.

I would appreciate a specific explanation from the "EXPERTS" stating that an automobile with four stop lamps is perfectly legal in the United States.

Thank you for your dedicated efforts on my behalf to clarify the correct point of view on Motor Vehicle Lighting Equipment.

P. S. I have enclosed the specific paragraphs & Tables discussed in my letter.

(ENCLOSURE OMITTED)

ID: nht95-1.32

TYPE: INTERPRETATION-NHTSA

DATE: January 19, 1995

FROM: Jiro Doi -- Vice President, MITSUBISHI MOTORS AMERICA, INC.

TO: Philip Recht -- Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 5/5/95 LETTER FROM JOHN WOMACK TO JIRO DOI (A43; PART 541)

TEXT: Dear Mr. Recht:

On behalf of Mitsubishi Motors America, Inc., a U.S. subsidiary of Mitsubishi Motors Corporation, I request a legal interpretation concerning Part 541 Federal Motor Vehicle Theft Prevention Standard, particularly our question regards Part 541.5(a)(2) whi ch requires that the transmission be marked with either the VIN or a VIN derivative.

The clutch housing, for vehicles with manual transmissions (or converter housings for vehicles with automatic transmissions), is attached to the transmission (See Attachment) via bolts that may be removed allowing the clutch housing (or converter housing ) to separate from the transmission. Nevertheless, we believe the clutch housing may be considered a part of the transmission. Therefore, we believe marking the clutch housing (or converter housing) complies with Part 541.5(a)(2).

Please provide us with your interpretation regarding this issue. If you have any questions, please contact me at (202) 223-5730.

Drawing omitted.

ID: nht95-1.33

TYPE: INTERPRETATION-NHTSA

DATE: January 20, 1995

FROM: Gary Shultz -- Vice President, General Counsel and General Manager, Diamond Star Motors

TO: Edward Glancy. Esq. -- NHSTA

TITLE: None

ATTACHMT: ATTACHED TO 2/10/95 LETTER FROM PHILIP R. RECHT TO GARY SHULTZ (A43; PART 583)

TEXT: Dear Mr. Glancy,

Pursuant to your phone conservation yesterday with Ms. Yolanda Gray, I am sending the included letter addressed to Mr. Recht to your attention for your and his priority attention. This regards our dilemms in how to comply with the Labeling Act under the circumstance of a mid-model year change in our production of one of our carlines from just the U.S. to both the U.S. and Japan. Your attention to this matter is sincerely appreciated.

Attachment

January 20, 1995

Mr. Philip R. Recht Chief Counsel NHTSA 400 7th St. S.W. Washington D.C. 20590

Dear Mr. Recht:

This letter seeks confirmation of compliance with the Automobile Labeling Act. 49 CFR part 583.6 specifies that "each manufacturer, except as specified in 583.5 (f) and (g), shall determine the percentage of U.S./Canadian Parts Content for each carlin e on a model year basis, before the beginning of each model year." Diamond-Star Motors has complied with calculating the percentage of domestic and foreign content of the automobiles we manufacture on a model year basis, and the labels affixed to the car s by our distributor, Mitusbishi Motor Sales of America, Inc., reflect this information.

The problem is the regulations do not mention what to do when there has been a change of plans in the source of production for a [Illegible Words] middle of its model year. One of the carlines currently production will now be manufactured in both the U.S. and Japan which may significantly affect the carline's current calculation for content as well as the final assembly point.

Diamond-Star is therefore requesting confirmation whether the label should be changed to reflect the change in domestic/foreign content in the middle of the model year or whether part 583.6 should be relied on as the authority for determining a carlin e's content only on a one-time model year basis. Further, confirmation is needed as to whether the label should be changed to reflect the final assembly point in accordance with part 583.5 (e).

Since production in Japan will commence soon, an urgent response for clarification is requested. Your time and cooperation is greatly appreciated.

ID: nht95-1.34

TYPE: INTERPRETATION-NHTSA

DATE: January 25, 1995

FROM: Fredd Scheys -- President, S.E.C. Carat Inc.

TO: Mr. John WOMACK -- NHTSA

TITLE: NONE

ATTACHMT: Attached to 1/27/95 letter from Philip R. Recht to Fredd Scheys (A43; Sec. 1397 (b)(2); Also attached to letter dated 3/8/93 from John Womack to Fredd Scheys; Also attached to letter dated 11/16/92 from Paul Rice to Scheys

TEXT: Dear Mr. Womack,

First, I would like to thank you for your information and help on the phone this afternoon.

As said on the phone, I send you the following letters;

1 Letter from Mr. Paul Jackson RICE, dated Nov. 16, 1992

2 Letter from you, dated March 8, 1993

Can you, please, confirm that these answers are still valid as of today. This to keep our records for this particular car as complete as possible.

Please, take note of the new address, fax and phone numbers.

Again, I would like to thank you for your advice and assistance in this for us very important matter.

Sincerely,

ID: nht95-1.35

TYPE: INTERPRETATION-NHTSA

DATE: January 25, 1995

FROM: Paul Pinoski -- Project Engineer, SLP Engineering, Inc.

TO: Philip R. Recht, Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 4/24/95 LETTER FROM PHILIP RECHT TO PAUL PINOSKI (A43; STD. 110; PART 567; PART 571); ALSO ATTACHED TO 6/8/94 LETTER FROM JOHN WOMACK TO HAL SULLIVAN

TEXT: Dear Mr. Recht:

I would like to request your assistance in clarifying a component of the definition of vehicle capacity weight listed in 49 CFR 571.110. Could you define the terms rated cargo load and luggage load and explain how these weights are obtained so that I may calculate vehicle capacity weight? My company is in the middle of a production run of a vehicle that we produce for General Motors and we need to fully understand every component of the GVWR. Expedition of this request would be greatly appreciated .

ID: nht95-1.36

TYPE: INTERPRETATION-NHTSA

DATE: January 25, 1995

FROM: Stuart Sacks -- TRADEPRO, INC.

TO: Philip R. Recht, Esq. -- Chief Legal Council, U.S. DEPARTMENT OF TRANSPORTATION, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 5/25/95 LETTER FROM JOHN WOMACK TO STUART SACKS (A43; STD. 119 PART 574)

TEXT: Dear Mr. Recht:

We are requesting a further interpretation of the Federal Motor Vehicle Standard 119, part 119 S-6.5.

We are considering the immediate possibility of importing tires from The Hangzhou General Rubber Factory, which holds the D.O.T. identification number 7D.

While Standard 109 for passenger tires (Section S-4.3) requires molded D.O.T. code numbers, Standard 119 clearly does not require this for non-passenger tires.

The tires that we are interested in importing from the above factory do not have molded code numbers and the cost of altering these existing molds is prohibitive.

Please respond at your earliest possible convenience so that we might proceed with this matter in full compliance with current regulations.