Interpretation ID: 20314.ztv

Ronald R. Sheldon, President
Metro Motors Corporation
2595 North Orange Blossom Trail
Kissimmee, FL 34744

Dear Mr. Sheldon:

This is in reply to your letter to Taylor Vinson of this Office, asking if there has been a change of policy regarding whether off-road vehicles are considered motor vehicles. I apologize for the delay in our response. As discussed below, there has not been any change in our policy

We informed Mr. Sanford of Metro Motors in a letter dated January 25, 1999 that it was our opinion that the small truck Metro wished to import was not a "motor vehicle" required to comply with Federal motor vehicle safety regulations. We listed several factors that we took into consideration in our decision. You claim that we stated that "these vehicles could not be sold through automotive distribution, nor could they bear the brand name of an automobile company selling licensable automobiles." You report that Kia Motors has announced that it will begin marketing this type of vehicle with the Kia brand name and through its distribution system.

In our January 1999 letter, we explained that in instances where the agency is asked whether a vehicle is a motor vehicle when it has both off-road and on-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, we have applied five factors in offering our advice. In our letter, we listed the five factors, and discussed how they applied to your vehicle, as follows:

1. Whether the vehicle will be advertised for use on-road as well as off-road, or whether it will be advertised exclusively for off-road use.

You stated that your product literature contains an advisory that the vehicles are for off-road use only. This factor suggests that the vehicles should not be considered motor vehicles.

2. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use.

The sample certificate of origin you enclosed in your letter states "THIS VEHICLE DOES NOT CONFORM TO ALL SAFETY AND EMISSIONS STANDARDS APPLICABLE TO ON-ROAD VEHICLES IN THE UNITED STATES." Therefore, this factor would indicate that the vehicles should not be considered motor vehicles.

3. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles.

As noted previously, you have informed us that the vehicles "will be marketed to industrial equipment distributors (forklift dealers) and professional turf dealers (golf course equipment firms) and specialty houses (industrial sweeper & scrubber dealers)." The vehicles sold by these dealers are not motor vehicles. This factor suggests that the vehicles should not be considered motor vehicles.

4. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads.

As noted above, two warning placards will be affixed to the exterior of the vehicle body. This factor would indicate that the vehicles are not motor vehicles.

5. Whether states or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

Since the vehicles closely resemble small trucks and vans used on the public roads, it is possible that states would permit them to be registered for highway use. In fact, the State of Maryland has issued an emissions approval certificate for one of the vehicles. Therefore, this factor suggests that the vehicles should be considered motor vehicles.

Based on the representations in your letter and considering all of the five factors discussed above, on balance, we believe that your vehicles are not "motor vehicles." However, we will reexamine this conclusion if we learn that, for example, the vehicles are in fact used on the public roads by a substantial number of owners.

As indicated by the discussion presented in our January 1999 letter, the issue of whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles is one of several factors that we consider together in determining whether it is a motor vehicle; the factor is not determinative by itself.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.5/4/00