ID: nht91-5.43

DATE: September 10, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Rosemary Dunlap -- President, Motor Voters

TITLE: None

ATTACHMT: Attached to letter dated 6-19-91 from Rosemary Dunlap to Paul Jackson Rice (OCC 6150)

TEXT:

This responds to your letter seeking clarification of statements made by NHTSA's Associate Administrator for Rulemaking, Barry Felrice, at the July 1990 Public/Industry Meeting regarding possible federal preemption of proposed state disclosure legislation. Specifically, you requested us to provide legal support for Mr. Felrice's general statement that the National Traffic and Motor Vehicle Safety Act (Safety Act) may preempt state laws requiring safety information disclosures to be affixed to vehicles. During a telephone conversation on July 1, 1991, Elizabeth Barbour of my staff informed you that in order to provide an opinion as to whether the Safety Act would preempt a specific state bill, we would need to review the provisions of that bill as a whole. Accordingly, you forwarded a copy of California Assembly Bill No. 71 to this office and asked whether the bill, if enacted into law, would be federally preempted.

We have reviewed the California bill. Because the question of preemption could turn on how the State of California would interpret the language in the bill and how it would be enforced if adopted, we are declining to provide a specific opinion as to whether or not the bill would be preempted. However, our discussion identifies the principles under which the validity of such legislation can be determined.

The bill would add a new section 24011.5 to the California Vehicle Code to read as follows:

24011.5 (a) Every dealer or lessor shall affix to the dashboard or a window of every new multipurpose passenger vehicle sold or leased, or offered for sale or lease, a notice which specifies whether or not the vehicle meets the following federal safety standards applicable to passenger cars:

(1) Side door strength; (2) Roof crush resistance; (3) Passive restraint devices; (4) Raised brake light.

(b) The notice required by subdivision (a) shall not be smaller than 8 inches by 10 inches, and shall be printed in at least 20-point type and shall be affixed in such a manner as to be readily removable by the purchaser or lessee.

(c) As used in this section, "passenger car" and "multipurpose passenger vehicle" have the same meaning as defined in regulations adopted pursuant to the National Traffic and Motor Vehicle Safety Act . . . .

According to the California Legislative Counsel's Digest, other provisions of existing California law would make violation of this requirement a crime.

At the outset, I would like to note that NHTSA has recently extended its standards/requirements on side door strength (FMVSS 214, quasi-static requirements only), roof crush resistance (FMVSS 216), passive restraint devices (FMVSS 208), and raised brake light (FMVSS 108) to cover most multipurpose passenger vehicles (MPV's). The amendments will become effective over the next several years. Therefore, we believe that this bill will become largely superfluous during that timeframe, since most MPV's will be required to be certified as complying with the enumerated requirements. We note, however, that there may be some slight differences in the way these requirements are applied to MPV's and the way they currently apply to passenger cars.

By way of background information, Federal law, including agency regulations, can expressly or impliedly preempt state law. Under section 103(d) of the Safety Act, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard. A non-identical state standard preempted under section 103(d) would be an example of express preemption.

A requirement for a label related to safety could in some cases constitute a safety standard. For example, several Federal motor vehicle safety standards include requirements for permanent labels.

We do not, however, believe that the California bill would constitute a safety standard. Therefore, it would not be expressly preempted under section 103(d). While the bill would require an information sheet to be affixed to the vehicle, the information sheet would be readily removable by the purchaser or lessee. Thus, the information sheet is not intended to remain affixed to the vehicle after sale. The requirement that the information sheet be affixed to the vehicle appears to be solely for the purpose of ensuring that a prospective purchaser will see it, and is thus akin to a requirement that the information be prominently displayed in the dealer showroom.

Federal law impliedly preempts state law when (1) it is impossible to comply with both; (2) the federal interest in the field is so dominant that federalism principles prevent enforcement of complementary or auxiliary state laws; (3) the federal regulatory scheme is so pervasive as to be exclusive; or (4) state law hinders the accomplishment and execution of the full purposes and objectives of federal law. See Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145, 1150-51 (1988).

We do not believe that the California bill would be preempted under any of the first three factors cited above for implied preemption. The California bill would not make it impossible to comply with federal law. Further, the federal interest in this area is not so dominant that complementary state laws may not be enforced, and the federal regulatory scheme is not so pervasive as to be exclusive.

There remains the issue of whether the California bill would be preempted as a state law which hinders the accomplishment and execution of the full purposes and objectives of federal law. One problem in analyzing this question relates to the fact that we have difficulty understanding how the drafters of the California bill contemplate that the dealers/lessors subject to the requirements would be capable of complying with them.

Dealers/lessors would have no way of knowing whether an MPV met particular passenger car requirements unless the manufacturer advised them. For example, while dealers/lessors could visually determine whether an MPV had a passive restraint or raised brake light, they would not know whether those devices met Federal standards for passenger cars. Dealers/lessors obviously could not determine from inspection whether an MPV met the side door strength or roof crush resistance requirements applicable to passenger cars.

The drafters of the California bill may have assumed that dealers/lessors could obtain information from manufacturers concerning whether MPV's met particular requirements. However, even if manufacturers wanted to help their dealers comply with this requirement by providing such information, the manufacturers might not be able to do so. A manufacturer would not know whether its MPV's met certain passenger car standards unless it had conducted substantial testing. And it may not be possible to test some MPV's to passenger car standards, because of different vehicle configurations or other factors. If this were the case, it is unclear how anyone, including a manufacturer, would be able to determine whether an MPV met such a standard.

One of the purposes of the Safety Act that is emphasized in the legislative history is the need for uniform standards. If the bill were interpreted as going beyond requiring dealers/lessors to disclose what they or manufacturers know and instead to require manufacturers or others to undertake significant testing, it would impose burdens similar to the certification burdens of a safety standard. For some standards, such as those involving crash tests, these burdens are quite large. We believe that a state disclosure law that imposed significant testing burdens, in connection with an aspect of performance for which NHTSA has issued a safety standard or decided not to issue such standard, would hinder the objective of uniform standards and be preempted under federal law.

I hope this information is helpful to you.

ID: aiam2201

Dear Mr. Sievers: This is in response to your letter of January 14, 1976, asking whethe your company's paver product must comply with the requirements of Federal motor vehicle safety standards and regulations, particularly Standards No. 119 and 120.; The National Highway Traffic Safety Administration (NHTSA) issue safety standards and regulations for 'motor vehicles.' Section 102(3) of the National Traffic and Motor Vehicle Safety Act defines a motor vehicle as a vehicle 'manufactured primarily for use on the public streets, roads, and highways.' Thus, a motor vehicle is a vehicle which the manufacturer expects will use public highways as part of its intended function. The primary Function of some vehicles is of a mobile, work-performing nature, and, as such, their manufacturer contemplates a primary use of the highway. Mobile cranes, rigs, and towed equipment such as chippers and pull-type street sweepers that travel at a normal highway speed are examples in this area. These motor vehicles qualify as trucks or trailers. As such they are subject to the Federal motor vehicle safety standards and regulations. On the basis of the information you have sent us your company's towed paver appears to be in this category of vehicles, and would therefore be considered a 'motor vehicle.'; There are some vehicles which are excepted from the motor vehicl classification despite their use on the highway. Highway maintenance and construction equipment, lane strippers, *self-propelled* asphalt pavers, and other vehicles whose maximum speed does not exceed 20 mph and whose abnormal configuration distinguished them from the traffic flow are not considered motor vehicles. Your company's paver would not appear to qualify in this category of vehicles since, as a towed paver, it would travel at a speed greater than 20 mph, at least when moving between job sites.; Consequently, your product must comply with the requirements of th Federal standards and regulations. Standard No. 119, *New Pneumatic Tires for Vehicles Other than Passenger Cars*, does not directly impose any duty on you, because it applies to tires rather than vehicles. However, the NHTSA has recently issued Federal Motor Vehicle Safety Standard No. 120, *Tire Selection and Rims for Vehicles Other Than Passenger Cars* (copy enclosed). This standard does require, effective September 1, 1976, that your vehicles be equipped with tires that conform to Standard No. 119 and are of sufficient load rating.; In addition to compliance with the safety standards and regulations you must ensure that your product does not contain a defect relating to motor vehicle safety. Vehicles containing such defects are subject to the notification, remedy, and civil penalty provisions of the National Traffic and Motor Vehicle Safety Act. For example, a vehicle equipped with tires that are designed for speed-restricted use would probably be considered to contain a safety-related defect if the vehicle is expected to travel at higher speeds.; Please contact us if we can be of any further assistance. Yours truly, Richard B. Dyson, Assistant Chief Counsel

ID: GF005203

Mr. Graham Wells, IV
Whites Tire & Rubber Company
PO Box 1469
Wilson, NC 27894

Dear Mr. Wells:

This is in response to your e-mail of August 2, 2004, in which you seek clarification of certain regulations pertaining to retreaded tires. Specifically, you ask what information is required on the sidewalls of retreaded tires for use on vehicles with a Gross Vehicle Weight Rating greater than 10,000 pounds.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

There is no Federal Motor Vehicle Safety Standard applicable to retreaded tires for vehicles other than passenger cars. However, 49 CFR 574.5 does require each tire sold in the United States, including retreaded tires, to be labeled with Tire Identification Number (TIN) in order to facilitate a recall in the event of a defect. Under 574.5 (a) through (d), each TIN consists of (a) the manufacturers or retreaders identification code, (b) the tire size symbol, (c) optional tire type code, and (d) the date code; i.e. the week and year of manufacture.

With respect to maximum load and maximum pressure, no regulation requires retreaded tires (for vehicles other than passenger cars) to show this information.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:574
d.9/10/04

ID: 9912

Mr. Fred Carr, Engineer
Utilimaster
65266 State Road 19
P. O. Box 585
Wakarusa, IN 46573-0585

Dear Mr. Carr:

This responds to your question asking whether Federal Motor Vehicle Safety Standard No. 211, Wheel nuts, wheel discs, and hub caps, applies to "motor vehicle equipment relating to light duty, medium duty, and heavy duty trucks or truck manufacturers." As explained below, Standard No. 211 does not apply to trucks, or truck equipment.

S2. Application of Standard No. 211 states the following:

This standard applies to passenger cars, multipurpose passenger vehicles, and passenger car and multipurpose passenger vehicle equipment.

"Multipurpose passenger vehicle" is defined at 49 CFR '571.3 as a motor vehicle designed to carry 10 persons or less, which is constructed either on a truck chassis or with special features for occasional off-road operation. Since Standard No. 211 applies only to passenger cars, multipurpose passenger vehicles, and their equipment, Standard No. 211 does not apply to trucks, or truck equipment. "Truck" is defined at 49 CFR '571.3 as a motor vehicle designed primarily for the transportation of property or special purpose equipment. Accordingly, manufacturers of trucks or truck equipment are not required to certify their trucks and truck equipment to the requirements of Standard No. 211.

I hope this information is helpful. If there are any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel ref:211 d:5/16/94

ID: nht94-5.29

DATE: May 16, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Fred Carr -- Engineer, Utilimaster

TITLE: None

ATTACHMT: Attached To Letter Dated 4/21/94 From Fred Carr To John Womack (OCC-9912)

TEXT: Dear Mr. Carr:

This responds to your question asking whether Federal Motor Vehicle Safety Standard No. 211, Wheel nuts, wheel discs, and hub caps, applies to "motor vehicle equipment relating to light duty, medium duty, and heavy duty trucks or truck manufacturers." As explained below, Standard No. 211 does not apply to trucks, or truck equipment.

S2. Application of Standard No. 211 states the following:

This standard applies to passenger cars, multipurpose passenger vehicles, and passenger car and multipurpose passenger vehicle equipment.

"Multipurpose passenger vehicle" is defined at 49 CFR @ 571.3 as a motor vehicle designed to carry 10 persons or less, which is constructed either on a truck chassis or with special features for occasional off-road operation. Since Standard No. 211 applies only to passenger cars, multipurpose passenger vehicles, and their equipment, Standard No. 211 does not apply to trucks, or truck equipment. "Truck" is defined at 49 CFR @ 571.3 as a motor vehicle designed primarily for the transportation of property or special purpose equipment. Accordingly, manufacturers of trucks or truck equipment are not required to certify their trucks and truck equipment to the requirements of Standard No. 211.

I hope this information is helpful. If there are any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

ID: nht70-2.34

DATE: 11/03/70

FROM: R. A. DIAZ -- NHTSA; SIGNATURE BY GEORGE C. NIELD

TO: B. Borisoff

TITLE: FMVSR INTERPRETATION

TEXT: Reference is made to your letter of October 14, 1970 to Secretary Volpe regarding our Consumer Information publication.

Concerning your comments on stopping distance, the wording used on page 4 is the exact wording of this regulation. The category "Stopping distance in feet with emergency brakes (partial service brake system)" is a generalization of the regulatory wording meant to convey the sense of this requirement to a consumer who may have no engineering background. The paragraph on page 193 paraphrases the regulatory wording. The title "Partial Failure on One System" is, again, meant to convey the meaning to an otherwise uninformed consumer. I trust this clarifies the situation for you.

The reason many motorcycles are not listed is the fact that the data was not received in time to be included in the book. I am enclosing copies of the data available for U.S. made motorcycles as you requested.

Volume 2, covering the 1971 makes and models will be available approximately November 15, 1970 and can be obtained from the Government Printing Office at a cost of $ 2.00. In addition two (2) new Consumer Aid publications entitled "BRAKES - A Comparison of Braking Performance for 1971 Passenger Cars" and "TIRES - A Comparison of Tire Reserve Load for 1971 Passenger Cars" will also be available at a cost of $ .40 each.

Many thanks for your kind words and your interest in our motor vehicle safety program.

ID: GF0044754

Mr. Russ Hunt
C/O Snider Tire Inc.
PO Box 16046
Greensboro, NC 27416-6046

Dear Mr. Hunt:

This is in response to your e-mail of July 13, 2004, in which you seek clarification of certain regulations pertaining to retreaded tires. Specifically, you ask whether it is permissible to remove or obscure certain information originally located on the sidewall of a medium truck tire during the retreading process.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

There is no FMVSS applicable to retreaded tires for vehicles other than passenger cars. However, 49 CFR 574.5 does require each tire sold in the United States, including retreaded medium truck tires, to be labeled with Tire Identification Number (TIN) in order to facilitate a recall in the event of a defect.

The DOT symbol located on the sidewall of a medium truck tire may either remain or be removed from that tire prior to retreading (see 574.5, enclosed).

With respect to other information located on the tire sidewall, including manufacturer name, ply rating, and maximum pressure, no regulation requires retreaded tires (for vehicles other than passenger cars) to show this information, and no regulation prohibits a retreader from removing this information.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref 574
d.9/7/04

ID: nht91-7.22

DATE: November 27, 1991

FROM: Masashi Maekawa -- Director, Technical Division, Ichikoh Industries, Ltd.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re L03/04

ATTACHMT: Attached to letter dated 12-18-91 from Paul Jackson Rice to Masashi Maekawa (A38; Std. 108)

TEXT:

Enclosed please find our written inquiring concerning the interpretation of photometric output requirements for Tail/stop lamps on passenger cars.

ATTACHMENT

Dear Mr. P.J. Rice,

This letter is a question for the interpretation of photometer output requirements for tail/stop lamps on passenger cars.

We would like to know your opinion toward regarding photometer requirements.

We know the lamp like the following drawing is treated as two separate lamps: one lamp is mounted on the fixed quarter panel and duplicate lamp is mounted on the trunk lid.

Each lamp complies with the effective projected luminous areas requirements, but doesn't comply with the photometric requirement as shown below:

Effective projected Photometric requirement luminous requirement

Lamp A Comply does not comply Lamp B Comply does not comply

In this case, is it possible to apply the combination of lamps (Lamps A & B), as prescribed in S 5.1.1.6 of FMVSS No.108 to the photometric requirement of the stop lamp?

If yes, 1. Is it also possible to apply this provision to Tail lamp? 2. Which photometric requirements, 1 lighted section or 2 lighted sections, will apply?

Drawing of Tail/Stop Lamps A and B in relation to the quarter panel side and trunk lid side.

(Drawing omitted)

ID: nht94-2.86

TYPE: INTERPRETATION-NHTSA

DATE: May 16, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Fred Carr -- Engineer, Utilimaster

TITLE: None

ATTACHMT: Attached To Letter Dated 4/21/94 From Fred Carr To John Womack (OCC-9912)

TEXT: Dear Mr. Carr:

This responds to your question asking whether Federal Motor Vehicle Safety Standard No. 211, Wheel nuts, wheel discs, and hub caps, applies to "motor vehicle equipment relating to light duty, medium duty, and heavy duty trucks or truck manufacturers." As explained below, Standard No. 211 does not apply to trucks, or truck equipment.

S2. Application of Standard No. 211 states the following:

This standard applies to passenger cars, multipurpose passenger vehicles, and passenger car and multipurpose passenger vehicle equipment.

"Multipurpose passenger vehicle" is defined at 49 CFR @ 571.3 as a motor vehicle designed to carry 10 persons or less, which is constructed either on a truck chassis or with special features for occasional off-road operation. Since Standard No. 211 appl ies only to passenger cars, multipurpose passenger vehicles, and their equipment, Standard No. 211 does not apply to trucks, or truck equipment. "Truck" is defined at 49 CFR @ 571.3 as a motor vehicle designed primarily for the transportation of propert y or special purpose equipment. Accordingly, manufacturers of trucks or truck equipment are not required to certify their trucks and truck equipment to the requirements of Standard No. 211.

I hope this information is helpful. If there are any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

ID: nht78-1.22

DATE: 09/22/78

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Dunlop Tire Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your August 2, 1978, letter noting two standards of the National Highway Traffic Safety Administration that you consider to be in conflict. You suggest that Part 569, Regrooved Tires, conflicts with Standard No. 119, New Pneumatic Tires for Vehicles Other Than Passenger Cars, in their requirements for the size of the molding of the word "regroovable".

Standard No. 119 specifies all of the labeling of tires for motor vehicles other than passenger cars. The size of that required labeling is set at not less than .078 inches. This size provision applies generally to all of the various information required to be labeled on a tire. The information labeled on the tire includes the tire identification number and word "regroovable" if appropriate. Both of these requirements, however, are subjects of their own regulations. The tire identification number is specifically regulated by Part 574 and regroovable tires are regulated by Part 569. Each of these Parts further specifies the size designation of the information that it requires. For example, Part 569 specifically requires the word "regroovable" to be in letters .38 to .50 inches in height.

The two standards do not conflict. The size requirement in Part 569 falls within the acceptable size levels of Standard No. 119. Part 569 merely further restricts the size of the word "regroovable" beyond that specified in Standard No. 119. Accordingly, the two are consistent. To understand both requirements, apply the general size requirements of Standard No. 119 to all information that is not otherwise regulated elsewhere. For information specifically regulated elsewhere, apply the size criteria specified in the applicable regulation.