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

ID: 10495-ii

Mr. Steve Anthony
Product Manager
Structural Composites Industries
325 Enterprise Place
Pomona, CA 91768

Dear Mr. Anthony:

This responds to your inquiry about Federal Motor Vehicle Safety Standard (FMVSS) No. 304, Compressed Natural Gas (CNG) Fuel Container Integrity, which takes effect on March 27, 1995. I apologize for the delay in our response. You stated that you manufacture CNG containers for OEMs. You further stated that some of your customers have requested that containers they purchase prior to FMVSS No. 304's effective date be labeled with a statement that they comply with FMVSS No. 304. Specifically, you asked whether your containers could be labeled with the statement "This CNG container meets the requirements of DOT FMVSS No. 304 effective March 27, 1995" or "DOT effective March 27, 1995." As explained below, prior to the effective date, you are prohibited from labeling a container with information that could appear to be a certification to the FMVSS.

In the preamble to the final rule establishing FMVSS No. 304, NHTSA stated that

a manufacturer may not certify a container as meeting the equipment standard until the standard goes into effect. Under the Vehicle Safety Act, a certification is a statement that a vehicle or item of equipment meets all applicable Federal Motor Vehicle Safety Standards that are then in effect. Therefore, until a standard is effective, manufacturers may not certify compliance with it (59 FR 49010, 49020 September 26, 1994).

Based on this discussion, you acknowledge that it would be impermissible for a manufacturer to include the symbol DOT on CNG containers manufactured prior to March 27, 1995. Nevertheless, you wish to specify information on the container that the container will comply with the soon to be effective FMVSS.

As discussed in our September 1994 notice, a manufacturer may not certify a container as meeting the equipment standard until the standard goes into effect. Any label on a product about meeting a standard tends to create the appearance of a certification. It is therefore our opinion

that, along with not using the symbol DOT, any such statement on a container label must affirmatively indicate that (1) no standard applies to the container, and (2) the statement is not a certification.

With these considerations in mind, your suggestion to include the statement "This CNG container meets the requirements of DOT FMVSS No. 304 effective March 27, 1995" would not be permissible because it might be read as constituting a certification. Moreover, the symbol DOT may not be included in your statement because its inclusion might be misinterpreted as implying that the container has been certified to an FMVSS that is in effect, since use of the DOT symbol is the usual method by which certifications are made.

You may, however, label a container with the following statement: "This CNG container would comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) 304, that takes effect on March 27,1995. However, since this container was manufactured before the effective date of FMVSS 304, it cannot be certified to comply with that standard. No FMVSS applies to the container."

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:3/2/95

ID: 10496

Mr. R.C. Rost
Minnesota Body & Equipment
7380 Highway 101
Shakopee, MN 55379-3097

Dear Mr. Rost:

This responds to your letter asking whether Federal law requires buses used for Head Start to be equipped with flashing lights and stop signal arms. You stated that the state of Minnesota recently adopted a law that prohibits such buses from being equipped with flashing lights and stop signal arms. I apologize for the delay in our response.

In an August 26, 1988 letter to you, NHTSA explained that "Federal motor vehicle safety standards (FMVSSs) applicable to buses defined under Federal law as school buses continue to apply in all respects to buses used to carry preprimary school pupils such as those in Head Start programs." Federal law continues to require such buses to comply with all applicable FMVSSs. Accordingly, the Head Start buses referenced in your letter must be equipped with flashing lights and stop signal arms. We have written to Major Glen Gramse of the Minnesota State Patrol to explain that the Minnesota law is preempted by the Federal Motor Vehicle Safety Standards applicable to school buses.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Walt Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:571 d:4/10/95

ID: 10496a

Major Glen Gramse
Minnesota State Police
444 Cedar Street
St. Paul, MN 55101

Dear Major Gramse:

It has been brought to our attention by Mr. R.C. Rost of Minnesota Body and Equipment that there is a question regarding Minnesota's law concerning buses used for Head Start programs. According to Mr. Rost, Minnesota prohibits these buses from being equipped with flashing lights and stop signal arms. He requested the National Highway Traffic Safety Administration (NHTSA) to clarify any inconsistencies between the Federal and State law.

As explained below, to the extent there is a conflict between Federal and State law, Federal law would prevail in this matter. All manufacturers and sellers of new school buses must comply with the Federal law by manufacturing and selling vehicles that are equipped with school bus lights and stop signal arms.

By way of background, Congress has directed this agency to issue Federal motor vehicle safety standards, which apply to the manufacture and sale of new motor vehicles. NHTSA has issued a number of FMVSSs for school buses, including ones requiring these buses to have warning lights and stop arms. The Federal law requires that each person selling a new bus (defined in our regulations as a vehicle designed for 11 or more persons) to a primary, preprimary, or secondary school must sell a bus that is certified to the FMVSSs for school buses. State law cannot change this requirement.

NHTSA's longstanding position is that Head Start programs are primarily educational in focus rather than custodial, and are therefore "schools" under NHTSA's statute. Accordingly, buses transporting students to and from Head Start facilities are defined as school buses under Federal law and are therefore subject to the Federal school bus safety standards. Any manufacturer that omits the warning lamp system required by paragraph S5.1.4 of Standard No. 108 or the stop signal arm required by paragraph S5 of Standard No. 131 (or that delivers a bus with these devices inoperative), is in violation of Federal law, and subject to recall provisions and civil penalties.

The effect of the statute's preemption provision is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the

Federal standards unless that State standard or requirement is identical to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light or stop arm requirements as a higher standard of performance. Thus, regardless of how a State defines "School bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with warning lights or stop arms. Although each State has the authority to establish laws for the use of vehicles on its roads (including the equipment on the vehicles), those State laws may not override Federal laws for what type of safety equipment must be installed on new vehicles.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Walt Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:571 d:4/10/95

ID: 10498

Mr. Thomas J. Leffler
Developmental Shop Manager
Findlay Industries, Inc.
1957 Crooks Road
Troy, MI 48084

Dear Mr. Leffler:

This responds to your letter of November 8, 1994, asking whether S4.3 of Standard No. 207, Seating Systems, requires a self-locking device to restrain the seat cushion of a particular seat design in the down position. The seat "has a storage box below the seat cushion frame. To access the storage space, the seat cushion pivots up to allow entry into the box." If a self-locking device is required, you asked whether static or dynamic testing is required for the device.

Section S4.3 of Standard No. 207 requires "a hinged or folding occupant seat or occupant seat back" to be equipped with a self-locking restraining device. NHTSA does not consider the words "occupant seat or occupant seat back" to refer to the seat cushion alone, and therefore a restraining device for the cushion alone is not required.

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.

Sincerely,

Philip R. Recht Chief Counsel

ref:207 d:2/7/95

ID: 10499

Ms. Barbara Kise
124 Dormar Drive
North Syracuse, NY 13212-2708

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 tolerate 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 vehicle 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 inoperative" 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 asthmatic 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 note 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 doctor 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 violation 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 be 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 manufactured. 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 Chief Counsel

Enclosure d:1/9/95 ref:VSA#208

ID: 10512

Ms. Dona B. Mann R.N., C.E.T.N.
Fastrac Ideas, Inc.
P.O. Box 2579
High Springs, FL 32643

Dear Ms. Mann:

This responds to your letter of November 14, 1994, concerning the "Koze Kover" seat belt holder. Your letter explains that "(t)he Koze Kover seat belt holder will hold the descending shoulder strap away from the jugular area of the neck. It is made from a tri- laminate material of polyester Kodel, 1/4 inch foam and urethane coated pack cloth. It is fastened by a hook and loop closure." You asked whether this product would be affected by any Federal Motor Vehicle Safety Standards issued by this agency.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. The agency does not approve, certify or endorse any vehicles or equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

There is currently no Federal motor vehicle safety standard that would apply to your product. We do have a standard (Standard 209, Seat belt assemblies) that sets forth requirements for new seat belt assemblies. However, since your product would not be installed as part of a new seat belt assembly, the standard would not apply.

While no Federal motor vehicle safety standard applies to your product, your device 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 prohibits them from installing the device if the installation "makes inoperative" compliance with any safety standard. It appears unlikely from the nature of your product that it would be placed in vehicles by commercial businesses instead of consumers. However, if your product were to be installed by persons in those categories, they must ensure that its installation does not compromise the safety protection provided by the vehicle belt system. The prohibition of section 30122 does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment.

Please note that the addition of any device to a vehicle's belt system raises possible safety concerns. With a device such as yours, the realigning of the shoulder belt could increase the likelihood that the wearer would twist toward the middle of the vehicle, so that the person could be partially or completely unrestrained by the shoulder belt. In addition, if the device introduced excessive slack into the belt system, the occupant's head would be more likely to contact the vehicle interior. Finally, you should be aware that originally installed safety belts must meet the requirements of Standard No. 302, Flammability of Interior Materials. We encourage you to evaluate your product against the requirements of this standard to ascertain whether it would degrade the flammability performance of safety belts.

I hope this information has been helpful. 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

Enclosure

ref:209 d:1/4/95

ID: 10526

Mr. Harry C. Gough, P.E.
State of Connecticut
Department of Motor Vehicles
60 State Street
Wethersfield, CT 06161

Dear Mr. Gough:

This responds to your letter to this office asking whether the retroreflective tape required to outline school bus emergency exits can, in the case of the rear emergency door, be placed on the door itself. The short answer is no.

You stated that the State of Connecticut requires that school bus bumpers be black. You further stated that one school bus manufacturer supplied buses with the bottom piece of the retroreflective tape installed on the rear bumper. You then noticed that a number of school buses from a different manufacturer had the bottom part of the tape installed on the door itself. You asked whether the language of S5.5.3 of Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release, permitted the installation of the retroreflective tape on the door itself.

Paragraph S5.5.3 of FMVSS No. 217 (49 CFR 571.217) provides:

Each opening for a required emergency exit shall be outlined around its outside perimeter with a minimum 3 centimeters wide retroreflective tape, either red, white, or yellow in color, . . .

This requirement was imposed by amendment to FMVSS No. 217 promulgated by a final rule published in the Federal Register on November 2, 1992 (57 FR 49413). In discussing this requirement in the preamble portion of the final rule, we said at 57 FR 49421:

Accordingly, the final rule requires a minimum 1 inch wide strip of retroreflective tape, either red, white, or yellow in color, to be placed around the outside perimeter of the emergency exit opening, not the emergency exit itself (emphasis added).

As you may know, the buses with the tape on the emergency exit doors have been recalled by the manufacturer. For information about the recall, you can contact the bus manufacturer, Thomas Built Buses, P. O. Box 2450, High Point, NC 27261.

Enclosed for your information are two interpretative letters issued by this office on related issues pertaining to the retroreflective tape requirement. See letter to Mr. Thomas D. Turner, Manager, Engineering Services, Blue Bird Body Company, dated July 7, 1993; and letter to Mr. Turner dated March 28, 1994.

I hope the above 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

Enclosures

Ref:217 d:3/16/95

ID: 10527

Ms. Robin R. Miller
DaRosa and Miller
208 North West Street
P.O. Box 48
Wheaton, IL 60189-0048

Dear Ms. Miller:

This responds to your letter of November 22, 1994, requesting information on what type of occupant protection systems (seat belts and/or air bags) were required in four passenger cars. The passenger cars were manufactured by Excalibur Automobile Corporation (Excalibur) between January 10, 1994, and May 6, 1994.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Chapter 301 prohibits any person from manufacturing, introducing into commerce, 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. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

One of the standards established by NHTSA, Standard No. 208, Occupant Crash Protection (49 CFR 571.208) requires some type of occupant protection system to be installed at all designated seating positions in all passenger cars. Different installation requirements apply depending on the seating position within the vehicle and the date of manufacture.

For passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires automatic crash protection at every front outboard seating position. Automatic crash protection systems protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, in a 30 mph barrier crash test. The two types of automatic crash protection currently offered are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

In addition, for passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires Type 2 belts at every forward facing rear outboard designated seating position, and a Type 1 or Type 2 seat belt assembly at every other seating position. Type 2 seat belt assemblies are defined in Standard No. 209, Seat Belt Assemblies, as "a combination of pelvic and upper torso restraints." Type 1 seat belt assemblies are defined in Standard No. 209 as "a lap belt for pelvic restraint."

You should be aware that Excalibur has applied for temporary exemption (49 CFR Part 555) from the automatic crash protection requirements of Standard No. 208 which would, if granted, apply to vehicles manufactured on or after the effective date of the exemption. Excalibur has also asked that it apply to those vehicles already manufactured but unsold and in dealer inventory. In addition, the manufacturer has also applied for an exemption from notification and remedy of its noncompliance with the automatic crash protection requirements on the basis that the noncompliance is inconsequential to motor vehicle safety (49 CFR Part 556). If granted, this would relieve Excalibur of the obligation to notify and remedy the noncompliance in vehicles already manufactured and not covered by the safety exemption petition. Prior to acting upon either of these applications, NHTSA will publish notices in the Federal Register requesting comments.

I hope this information has been helpful. 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

ref:208 d:1/5/95