Mr. Ed Irvine
Midwest Conservation Systems
P.O. Box 397
Silver Lake, KS 66539

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 trailers 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 interpretation 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 authority 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 Safety 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 air 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 Counsel concerning the motor carrier standards, please call Charles Medalen at (202) 366-1354.

Sincerely,

Philip R. Recht Chief Counsel ref:121 d:1/11/95