Interpretation ID: INS_SUV

Mr. Mark D. Wallace
Department of Justice
U.S. Immigration & Naturalization Service
Room 6214
425 I Street, NW
Washington, DC 20536

Dear Mr. Wallace:

This is in response to your request for a waiver to purchase motor vehicles that, because of their design for severe off-road use, do not comply with the Federal motor vehicle safety standards (FMVSS). The National Highway Traffic Safety Administration (NHTSA) does not grant this type of waiver. However, as explained below, the vehicles you wish to purchase would not be subject to the FMVSS.

By way of background, under 49 U.S.C. 30101(1) this agency has jurisdiction over "motor vehicles." A motor vehicle is "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways[.]" 49 U.S.C. 30102(a)(6). In limited circumstances, we have determined that vehicles designed and sold exclusively for off-road use were not "motor vehicles" and thus, not regulated under the FMVSS.[1] If the vehicles you wish to purchase were intended only for off-road use and therefore not "motor vehicles," they would not be subject to our standards. Furthermore, under 49 CFR 571.7(b), the FMVSS do not apply to vehicles "manufactured for, and sold directly to the Armed Services of the United States in conformity with contractual specification."

In your letter you state that current commercial, "off-the-shelf" sport utility vehicles are unable to meet the demands of operating in the severe terrain as required by the expanding mission of the Border Patrol. In response to this problem, you state that the Immigration and Naturalization Service (INS) developed a "Terrain-Based Off-Road Vehicle Program," through which the INS is working with different vehicle manufacturers to produce off-road vehicles that are designed to withstand the off-road driving conditions of deserts and mountain passes, based on existing commercial vehicles (e.g. the Chevrolet Silverado 2500HD). You anticipate that these vehicles would be operated by the Border Patrol on public roadways less than ten percent of their driving time.

Your request cites a previous letter from our agency in which we determined that through border enforcement, the Border Patrol functions similar to a component of the Armed Forces.[2] In that letter, the Hummer vehicles bought by the Border Patrol were used in a national security role by protecting "the countrys borders to ensure that persons and goods enter and exit only through official Customs and Immigration stations." The Hummer vehicles were capable of being equipped with military equipment and would carry firearms. As such, the Hummer vehicles were not subject to the FMVSS.

Our agency regards the border enforcement function of the Border Patrol as being akin to a component of the Armed Forces of the United States. Because of the unique mission and method of operation by the Border Control, I have determined that the vehicles in question fall with in the military vehicle exemption and need not be certified as compliant with all applicable FMVSS. In this instance, the vehicles you wish to purchase would be built according to specifications provided by the Border Patrol. The vehicles would be sold directly to the Border Patrol. The vehicles would be used in a capacity similar to that of the exempted Hummer vehicles previously purchased by the Border Patrol and in a capacity similar to that of the Armed Forces. We take no position on whether these vehicles, if purchased by someone other than INS, would be considered motor vehicles with in the context of 49 U.S.C. 30101, et seq.

I hope this addresses your concern.If you have any further questions please contact Mr. Chris Calamita of my staff at (202) 366-0536.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.3/17/03