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

ID: 1985-03.41

TYPE: INTERPRETATION-NHTSA

DATE: 09/10/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Barry Mitchell

TITLE: FMVSS INTERPRETATION

TEXT:

September 10, 1985 Mr. Barry Mitchell Sun Country Imports/Sales 6232 N. 7th Street, Suite 209 Phoenix, AZ 85014 Dear Mr. Mitchell: Thank you for your letter of July 11, 1985, requesting an interpretation of Standard No. 115, Vehicle Identification Number--Basic Requirements. Your letter states that you plan to ship vehicles manufactured by Volkswagen of Brazil to Canada where they would be brought into compliance with United States safety standards requirements. These vehicles, which you describe as being manufactured in more than one stage, would be certified as complying with applicable safety standards before being imported to the United States. You asked whether you should use the vehicle identification number (VIN) assigned to them by the Brazilian manufacturer. Section 4.1 of Standard No. 115 requires the use of the VIN assigned to them by Volkswagen of Brazil, whether they are completed vehicles manufactured in one stage (i.e., they can perform their intended function as manufactured in Brazil, regardless of whether they complied with U.S. safety standards), or incomplete vehicles, such as chassis cabs which need work-performing or other equipment added to them during a second or subsequent stage. Please note that, if these vehicles are imported under 19 CFR 12.80(b)(1)(iii), they would be exempt from the requirements of S4.2, S4.3, and S4.7 of Standard No. 115. A copy of the Federal Register notice of January 30, 1985, making this correction to the final rule of May 19, 1983, is enclosed. You should also be aware that, for vehicles imported under 19 CFR 12.80(b)(1)(iii), a bond is required for all vehicles not originally manufactured to comply with the safety standards but brought into conformity before entry. This procedure is explained in the final rule on importation of motor vehicles and motor vehicle equipment issued by the Customs Service on December 4, 1978 (43 FR 56655). A copy of this notice is also enclosed. I hope this information is helpful to you. Sincerely, Original Signed By Jeffrey R. Miller Chief Counsel Enclosures

ID: nht95-2.20

TYPE: INTERPRETATION-NHTSA

DATE: April 6, 1995

FROM: Teresa Thompson -- Tony [Illegible Words]

TO: National Highway Traffic, Safety Council

TITLE: NONE

ATTACHMT: ATTACHED TO 5/11/95 LETTER FROM JOHN WOMACK TO TERESA THOMPSON (A43; STD. 108)

TEXT: Dear Chief Council,

I am writing to inquire about regulations which might apply to an automobile deceleration signal. My partner has invented a strobe light with an independent power supply, which upon heavy breaking, will activate a strobe for five seconds and on impact f or ten minutes.

The prototype for the light is approximately 4" by 3" and may be attached to a rear window with section cups or may be permanently installed with brackets. The light operates from a nine volt battery and the timers are activated by memory sensitive switc hes, [Illegible Word] with its own timing device according to the amount of torque applied in a given situation.

[Illegible Lines]

This device would be useful to all areas of the country where heavy fog occurs, heavy rain or areas which are mountainous in essence, the whole country.

We have tested the prototype as far as individually possible, but would like information on how to have this product tested and approved as well as information on the legal ramifications and liabilities for the product.

Your help in this matter, would be greatly appreciated.

ID: nht87-1.38

TYPE: INTERPRETATION-NHTSA

DATE: 02/23/87

FROM: C.M. MEHTA -- AUTOLITE [INDIA] LIMITED

TO: NHTSA

TITLE: DOT APPROVAL ON HEADLAMPS/DRIVING LAMPS ETC FOR MARKETING IN USA

ATTACHMT: ATTACHED TO LETTER DATED 06/17/87 FROM ERIKA Z. JONES -- NHTSA TO C.M. MEHTA, REDBOOK A30, STANDARD 108

TEXT: Dear sirs,

Kindly refer to our letter No. 1476 dated 9.1.87 whereby we introduced ourselves as a reputed manufacturer and exporter of all types of Automobile Headlamp Assembly, Semi Sealed Beam Units, Fog Lamps etc., under trademark 'AUTOPAL'. We had requested you to send us following informations:

1. Details of DOT/SAE approval required in marketing our Headlamp Units 7", 5 3/4" (Round) and Rectangular small and large. (We had already sent you an illustrated catalogue of our products with the above letter).

2. Can we market these lamps as referred in Para No. 1 fitted with 9004, 9005 and 9006 Bulbs. If there is any specifications/technical details available with you, please send us a copy.

3. We understand that the use 9004, 9005, 9006 bulbs are permitted on Headlamps with lens and Reflectors made of Plastic. Kindly advise, if we can use these Reflector made of metal?

4. Details of approval required for High Beam Driving Lamps to be used for off-road vehicles.

5. The details of specifications for Driving Lamps to be used on Cars, Trucks etc.

In addition to the above, we further request you to please provide us the following specifications immediately by airmail:-

I) SAE-F-80 FRONT FOG LAMPS II) SAE-J-79 MOTOR CYCLE HEADLAMPS III) SPECIFICATION FOR DRIVING LAMPS USING H3 BULB.

Kindly send us the above informations/specifications urgently. If there is any charges for technical details/specifications, please inform us and send us your Proforma Invoice to cover the cost of the same when it will be remitted to you.

Awaiting to hear from you soon.

Thanking you, we remain

Yours faithfully,

ID: nht92-5.42

DATE: June 26, 1992

FROM: Becky Plank -- Executive Director, National Mobility Equipment Dealers Association

TO: Office of the Chief Counsel -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 9/15/92 from Paul Jackson Rice to Becky Plank (A39; Std. 301; Part 567)

TEXT:

Our Association consists of dealers that modify vehicles for the disabled. We have enclosed a set of our guidelines,along with an information brochure, for your perusal.

As you will note, the guidelines/standards are for our members to follow for installation of adaptive equipment. To our knowledge, there are no other guidelines/standards in the market. We are aware that we must follow the FMVSS when installing or modifying a vehicle that is not adaptive- equipped.

Currently there is a controversy in our membership over a fuel tank issue involving FMVSS 301.

One of the modifications our members perform is lowering a floor, on a full size van. When an individual drives from their wheelchair, they sit higher, thus causing them to bend their head forward to have a clear view from the windshield. Therefore, the adaptation is necessary in order to lower the eye level of a wheelchair driver, for safer operation of the van.

There was a problem with the design of the new Ford van, in that their fuel tank is larger and mounted mid-ship. When Ford Motor Company realized the hardship they had created for the disabled, they designed an after-market fuel system that complies with FMVSS.

Some of our members categorically state that they can lower the mid-ship OEM tank. Taking into consideration that the OEM fuel fill line needs to be changed, along with the mounting brackets, as well as other fuel lines; our question is - will this lowered system have to be crash tested due to the original fuel system being changed.

Based on the foregoing, we would like a legal interpretation of FMVSS 301.

We would appreciate your response regarding this very important matter as soon as possible.

ID: nht87-2.49

TYPE: INTERPRETATION-NHTSA

DATE: 07/13/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Mark Roberts

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Mark Roberts 40 East Stillforest Houston, Texas 77024

Dear Mr. Roberts:

This is in reply to your letter of June 9, 1987, with respect to an aftermarket motorcycle lamp that you wish to produce. You refer to the lamp as a "motorcycle safety light" that would supplement other motorcycle lighting and "would be a rear facing or all direction light with an amber colored lens that would flash". You have asked if there are any restrictions or guidelines for such a lamp.

Your letter does not indicate the size, flash rate, or intensity of the light, nor whether you intend it to be installed by motorcycle dealers prior to the first sale, or available only for installation on motorcycles already in use. However, I can give you some general guidelines.

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment contains the requirements that apply to motorcycles and must be met at the time of sale and delivery to their first owners. Generally, except as provided i n the standard (e.g. motorcycle headlamp modulating devices) all lamps must be steady burning in use. Your lamp, however, would flash, and therefore appears precluded as an item of original equipment. Further, vehicle equipment must not impair the effect iveness of lighting equipment required by the standard. Although in the absence of specifications of your lamp we cannot say whether it would impair the effectiveness of required motorcycle lighting equipment, we note that an rearward facing amber flashi ng lamp could create confusion with a rearward facing amber turn signal lamp.

As an aftermarket device intended for vehicles in use, your lamp is subject only to the Federal restriction that its installation by a dealer, distributor, or motor vehicle repair business shall not render inoperative in whole or in part other required l ighting equipment. Should your device place an excessive drain on a motorcycle battery affecting the operability of other lighting equipment it could be viewed as violative of the Federal restriction. However, even if this question is answered in the neg ative, the question of the acceptability of the supplemental lamp is determined by the laws of the state in which the device is sold or used. We are unable to advise you on these laws, and suggest that you write American Association of Motor Vehicle Admi nistrators, 1301 Connecticut Avenue, N.W., Washington, D.C. 20016, for further information.

Sincerely,

Erika Z. Jones Chief Counsel

Dept. of Transportation Erika Jones Chief Council Natl. Highway Traffic Safety Administration Room 5219 400 7th Street SW Washington, D.C. 20590

Dear Ms. Jones,

Our company is interested in producing a motorcycle safety light intended as an after market piece of equipment, and not to replace original equipment. It would be a rear facing or all direction light with an amber colored lens that would flash.

Please tell me of any restrictions and / or guidelines that might affect the design and production of such a light. Is there is a manual of such information, I would greatly appreciate being sent one. Thank you for your attention.

Yours,

Mark Roberts

ID: nht91-7.38

DATE: December 10, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA (Signature by Kenneth A. Weinstein)

TO: James E. Scapellato -- Director, Office of Motor Carrier Standards, FHWA

TITLE: Re Standard No. 108 (Heavy duty trailers) Lamps and Reflectors

TEXT:

This responds to your memorandum of November 20, 1991, asking whether Federal Motor Vehicle Safety Standard No. 108 permits a trailer manufacturer "to equip a heavy-duty flatbed trailer with amber tail lamps in combination with its rear turn signal lamps." Such a combination lamp would be adjacent to combination red stop and taillamps.

Standard No. 108 does not directly answer this question. Table II of the standard requires the trailer to be equipped with a pair of red taillamps. Section S5.1.3 of Standard No. 108 prohibits the installation of supplementary lighting equipment "that impairs the effectiveness of lighting equipment required by this standard." Thus, the question is whether the installation of amber taillamps would impair the effectiveness of the trailer's amber turn signal lamps, red stop lamps, and red taillamps. Although the determination of impairment is initially that of the vehicle's manufacturer in certifying compliance of the vehicle to all applicable Federal motor vehicle safety standards, NHTSA may review that determination, and, if clearly erroneous, inform the manufacturer of its views.

In this instance, NHTSA believes there is a substantial possibility of impairment of the effectiveness of other rear lamps. When combined with an amber turn signal lamp, the intensity of an amber taillamp might mask the turn signal in operation. Because motorists are not used to seeing steady burning amber lamps on the rear of vehicles, amber taillamps could lead to momentary confusion of a driver following the trailer when the stop lamps are activated, thereby impairing the effectiveness of the stop signal. The presence of simultaneously burning amber and red taillamps could also create some confusion of a following driver approaching the trailer from around a corner to its rear. Thus, we have concluded that a combination amber turn signal and taillamp is implicitly prohibited by Standard No. 108.

ID: 15845.ztv

Mr. Jay Townley
Jay Townley & Associates
N1367 Southern Road
Lyndon Station, WI 53944-9708

Dear Mr. Townley:

This is in reply to your letter of August 25, 1997, asking whether ZAP electric bicycles are exempt from NHTSA jurisdiction.

You have enclosed a copy of a ZAP owner's manual for our information.

We have previously corresponded with you on the subject of electric bicycles. At that time (February 16, 1993) we advised you that there was a significant difference between the Yamaha pedal-assisted bicycle and motorized bicycles and mopeds. The propulsion systems of the latter vehicles enable them to operate on power without pedaling. However, the power assist of the Yamaha disengaged when torque at the pedals was less than 11 pounds, which meant that the system will not operate on its own, in the absence of muscular effort. We concluded that, in light of the combination of a low maximum speed while operating on power (the power of the Yamaha disengages when speed is more than 15 mph) and the fact that power is only provided if the operator is providing muscular effort (by continuously pedalling), the Yamaha was not a "motor vehicle" subject to our jurisdiction. We noted that, even with power assist, the operation of the Yamaha is essentially the same as that of a bicycle, i.e., the operator must pedal under the same circumstances as a traditional bicyclist and the speed of the Yamaha does not differ from the speed of traditional bicycles.

The ZAP presents a different situation. Page 8 of the ZAP manual depicts three modes of "Engagement Lever Operation": "Rider Only," "Motor-Assisted," and "Full-Time Power-Assisted" for the operation of the vehicle. You will note that one of them allows the ZAP to be operated at all times by electric power alone, and without any muscular input of the rider. Page 13 of the ZAP manual depicts two "Performance Optimization Charts." The top chart "indicates the distance the bike will travel while people of various weight are not pedaling." The chart indicates a range of 17 miles for a 75-pound rider at the low speed setting for the electric motor, down to a range of 4 miles for a 245-pound driverat the high speed setting for the electric motor.

Although ZAP does not recommend running the motor without pedaling, its electric bicycle is clearly designed to do so and, without muscular input from the rider, can propel the vehicle at speeds up to 10 mph at distances up to 17 miles. Under 49 U.S.C. 30102(a)(6), a "motor vehicle," is defined in pertinent part, as "any vehicle that is driven or drawn by mechanical power, manufactured primarily for use on the public streets, roads, and highways." We have concluded that the ZAP meets this definition, and is a motor vehicle, notwithstanding the fact that it can also be operated by pedals alone, or by pedals assisted by the motor.

It therefore appears to be subject to the Federal motor vehicle safety standards that apply to motorcycles and motor driven cycles, notwithstanding any representations to the contrary by its manufacturer.

Your client may wish to be advised that, under 49 U.S.C. Chapter 301, any person who sells a motor vehicle that is not in compliance with the Federal motor vehicle safety standards is subject to a civil penalty of up to $1,100 per violation, up to $880,000 for any related series of violation.

If you have any questions, you may refer them to Taylor Vinson of this office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel

ref:571

d.9/11/97

ID: nht68-4.10

DATE: 09/03/68

FROM: AUTHOR UNAVAILABLE; Robert M. O'Mahoney; NHTSA

TO: Officine Alfieri Maserati S.p.A.

TITLE: FMVSR INTERPRETATION

TEXT: This is in responce to your letter of August 8 with reference to compliance of the Maserati automobile with Federal motor vehicle safety standards.

You have asked first of all whether, as a manufacturer of 620 vehicles in 1967, Mascrati may be excused from compliance with some of the Federal standards. The National Traffic and Motor Vehicle Safety Act of 1966, under which Federal standards are issued, was recently amended to authorize a procedure whereby manufacturers of limited production vehicles might petition for examption from the Federal standards. But this procedure is not available to a manufacturer of more than 500 vehicles a year, no matter how few vehicles of that manufacturer are exported to the United States. Consequently Maserati cannot be exempted from any of the Federal standards.

You have also mentioned the difficulties that a small manufacturer face in crash-testing vehicles, and have asked whether the photographs you submitted showing several Mascrasti automobiles which have been involved in front and collisions are acceptable as proof of compliance with Federal standard No. 204 (Steering Control Rearward Displacement - Passenger Cars). I hope the following explanstion will be of assistance to you. The Federal standards do not require crash-testing of vehicles, nor the submission of any data to the Federal Highway Administration for "approval". What is required is that a manufacturer attach a certification on plate to his vehicle stating that the vehicle conforms to all applicable Federal standards on the date of the vehicle's manufacture. How the manufacturer satisfies himself that the vehicle conforms is his own affair; he may have non-crash data or other information which indicates conformance. The Federal Highway Administration, however, may requests this date if through its own investigation it appears that a certification is false or misleading, and that a vehicle does not actually conform to a standard.

I enclose a copy of the latest Federal standards for your guidance.

ID: 3058yy

Mr. Dwayne R. Szot
1404 Lay Boulevard
Kalamazoo, MI 49001

FAX 616-382-0429

Dear Mr. Szot:

This responds to your FAXed letter of June 28, l99l, with respect to your prospective importation from Poland of a 10-year old Syrena passenger car. We have also received a letter from Roy Slade, President, Cranbrook Academy of Art, relating to you.

As you have explained, you intend to remove the engine upon arrival to meet EPA approval. You intend the remainder of the vehicle to become a "time capsule" containing artifacts relating to the hopes and dreams of Poles, here and abroad, for the future, and their feelings about the past and present. You will transport the car among Polish communities here, and then seal the car in November in a Plexiglas box. For the next 25 years, the car will be displayed in its box at museums and art galleries, and, in 2016, will be returned to Poland.

As you undoubtedly know, motor vehicles and motor vehicle equipment must comply with all applicable Federal motor vehicle safety standards in order to be imported into the United States, with such exceptions as Congress has authorized in the Imported Vehicle Safety Compliance Act of l988, and as have been set forth in the implementing regulation, 49 CFR Part 591. The Syrena, of course, does not meet these standards. The Act does not specifically permit the importation of a noncomplying vehicle for purposes of static display, though it does allow admission for purposes of "research, investigations, studies, demonstrations or training, or competitive racing events." We have not interpreted any of these provisions as allowing importation for display.

The question then is whether the importation of the Syrena for the purposes described may nonetheless be justified because it presents no threat to motor vehicle safety. We note that you will satisfy the concerns of EPA by removal of the engine. This, in itself, does not result in the Syrena becoming something other than a motor vehicle, but it does mean that the Syrena cannot be driven on the public roads. Further, under the circumstances you describe, should the vehicle be towed, it is unlikely to be occupied by passengers because of the quantity of its contents. Under the circumstances you have described, the Syrena time capsule will present no threat to motor vehicle safety.

Although the importation of this vehicle may be a technical violation of the l988 Act, it would not be the type of violation that this agency, in the exercise of its prosecutorial discretion, would pursue. You may therefore present this letter to the appropriate Customs officials at the port where the Syrena will arrive for entry into the United States as a statement from the Department of Transportation that it has no objection to your importation of the Syrena time capsule.

If you have further questions, you may refer them to Taylor Vinson of this Office (202-366-5263) who spoke with your wife last week.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:59l d:7/5/9l