nht87-1.16 | NHTSA

TYPE: INTERPRETATION-NHTSA

DATE: 01/12/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Donald P. Weiher -- Dirctor, Product Assurance, LTV Aerospace and Defense Company, AM General Division

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Donald P. Weiher Director-Product Assurance LTV Aerospace and Defense Company AM General Division P.O. Box 3330 Livonia, MI 48151-3330

This is in reply to your letter of September B, 1986, to Mr. Oesch of this Office asking whether certain military vehicles are "motor vehicles" for purposes of notification and remedy in the event they are discovered to have safety related defects.

Based on the information your letter provides, we must conclude that the tactical military vehicles in question are motor vehicles within the meaning of section 102 (3) of the Safety Act, 15 U.S.C. 1391 (3), and that they are subject to the defect notifi cation and remedy provisions of the Act, although, as military vehicles they are exempt from compliance with Federal Motor Vehicle Safety Standards.

You have described the vehicles in question as "all tactical vehicles designed for cross-country (40%), secondary (30%) and primary (30%) roads." Such vehicles include the M998 Series 1 1/4 ton truck, and other tactical military trucks such as the 2 1/2 ton M44 Series and the 5-ton M809 and M939 Series. You have noted that the Office of Defects Investigation has previously assigned campaign numbers for safety related defects on similar tactical military vehicles. You have also noted the agency's 1969 in terpretation on mini-bikes states, as you have quoted it, that "in the absence of clear evidence that, as a practical matter a vehicle is not being, or will not be, used on the public streets, roads, and highways the operating capability of a vehicle is the most relevant fact in determining whether that vehicle is a motor vehicle."

Under the information you have presented, the tactical military trucks are designed to be used 60% of the time on primary and secondary public roads. In our view, they must then be considered as having been designed primarily for use on the public roads, and hence, "motor vehicles" under the Act.

We have conferred with our Office of Defects Investigation, and it appears to us that when that office responded to your inquiries on February 19 and March 5, 1986, it acted in the belief that the vehicles in question are intended primarily for off road use and that they lack an operating capability for substantial on road use. The fact that the vehicles are intended for use on roads 60 percent of the time indicates operating capability for such use.

We hope that this clarifies the status of these vehicles with respect to the definition of "motor vehicle" contained in the Act. We appreciate your having requested this further consideration of this question. If you have further questions concerning thi s matter, please contact Mr. Taylor Vinson, an attorney in this office who can be reached by telephone at (202) 366 5263.

Sincerely,

Erika Z. Jones Chief Counsel

September 8, 1986

Mr. Steven Oesch Office of the Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

- PETITION -

Dear Mr. Oesch:

Please provide concurrence with the attached interpretations from Mr. Philip W. Davis, Director, Office of Defects Investigation/Enforcement regarding military vehicles "not manufactured primarily for highway use."

A generalization would be that all tactical vehicles designed for cross-country (40%), secondary (30%) and primary (30%) roads such as the subject M998 Series 1 1/4 Ton Trucks (a.k.a. HUMM-V) would all be exempt by virtue of not being "manufactured prima rily for highway use" and therefore not considered to be a "MOTOR VEHICLE under the provisions of the National Traffic and Motor Vehicle Safety Act. (Title I, Part A, Sec. 102(3) Interpretation).

Our previous verbal direction from your office had been that although these vehicles may be exempt from compliance with the safety standards (Ref. 571.7(c) enclosed), they are not exempt from the Safety Act or the Regulations, further the enclosed interp retations dated October 3, 1969, 34 F.R. 15416 and published under Part 571.3 "Definitions" state "that in the absence of clear evidence that as a practical matter a vehicle is not being, or will not be, used on the public streets, roads or highways the operating capability of a vehicle is the most relevant fact in determining whether or not that vehicle is a motor vehicle under the act", leaves us confused. Since the Office of Defects Investigation has previously assigned campaign numbers for safety re lated defects on similar tactical military vehicles, we solicit your official interpretation and guidance regarding safety related defects on tactical military trucks, such as the noted 1 1/4 Ton M998 Series, the 2 1/2 Ton M44 Series and the 5-Ton M809 a nd M939 Series.

Sincerely,

Donald P. Weiher Director-Product Assurance

DPW/tlb

Mr. Fred I. Masten Supervisor - Warranty/Safety LTV Aerospace and Defense Company AM General Division 701 W. Chippewa Avenue South Bend, IN 46680-2841

Dear Mr. Masten:

Thank you for your letter of February 19, 1986, concerning the recall of 1984-1986 AM General M998 Series trucks.

As the vehicles involved in this campaign are specifically designed to meet military specifications and are not manufactured primarily for highway use, we do not consider this to be a motor vehicle safety defect recall under the provisions of the Nationa l Traffic and Motor Vehicle Safety Act.

Therefore, no further reports on this matter are necessary.

Sincerely,

Philip W. Davis Director Office of Defects Investigation Enforcement

Mr. Fred I. Masten Supervisor - Warranty/Safety LTV Aerospace and Defense Company AM General Division 701 W. Chippewa Avenue South Bend, IN 46680-2841

Dear Mr. Masten:

Thank you for your letter of January 27, 1986, concerning the recall of 1984-1986 AM General M998 Series trucks.

Therefore, no further reports on this matter are necessary.

Sincerely,

Philip W. Davis Director Office of Defects Investigation Enforcement

Sec. 102 (cont.) (3) "Motor vehicle" means any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

(4) "Motor vehicle equipment" means any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle, and any device, article, or apparel not a system, part, or component of a motor vehicle (other than medicines, or eyeglasses prescribed by a physician or other duly licensed practitioner), which is manufactured, sold, de livered, offered, or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from risk of accident, injury or death.

s571.7 (cont.) (c) Military vehicles. No standards applies to a vehicle or item of equipment manufactured for, and sold directly to the Armed Forces of the United States in conformity with contractual specifications.

(d) Export. No standard applies to a vehicle or item of equipment in the circumstances provided in Section 108(b) (5) of the Act 15 U.S.C. 1397(b) (5)).

(e) Combining new and used components. When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured for purposes of paragraph (a) of this section, the application of the requirements of this chapter, and the Act, unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle.

Interpretations

General. Compliance with Initial Federal Motor Vehicle Safety Standards is determined by actual date of manufacture, rather than model year designation.

Mini-bikes. A number of persons have asked the Federal Highway Administrator to reconsider his February 4, 1969, interpretation of the National Traffic and Motor Vehicle Safety Act of 1966 concerning mini-bikes (34 F.R. 1909). In that interpretation, the Administrator concluded that mini-bikes are "motor vehicles" within the meaning of section 102(3) of the Act, and are regarded as "motorcycles" or "motor-driven cycles" under the Federal Highway Administration regulations (34 F.R. 1909). Under those re gulations, motorcycles and motor-driven cycles must conform to Motor Vehicle Safety Standard No. 108, which imposes performance requirements relating to lamps, reflective devices, and associated equipment.

The primary basis for the conclusion of the February 4 interpretation, as stated therein, was that "in the absence of clear evidence that as a practical matter a vehicle is not being, or will not be, used on the public streets, roads, or highways the ope rating capability of a vehicle is the most relevant fact in determining whether or not that vehicle is a motor vehicle under the ACT * * *" It was stated that if examination of a vehicle's operating capability revealed that the vehicle is "physically capable (either as offered for sale or without major additions or modifications) of being operated on the public streets, roads, or highways, the vehicle will be considered as having been manu factured primarily for use on the public streets, roads, and highways'." It was also stated that a manufacturer would need to show substantially more than that it has advertised a vehicle as a recreational or private property vehicle or that use of the vehicle on a public roadway, as manufactured and sold, would be illegal in order to overcome a conclusion based on examination of the vehicle's operating capability.

Petitioners have urged the Administrator to abandon the operating capability test. They have argued that many vehicular types, such as self-propelled riding mowers, have an "operating capability" for use on the public roads and yet are obviously outside the class of vehicles which Congress subjected to safety regulations. True as that may be, the Administrator has decided to adhere to the view that the operating capability of a vehicle is an important criterion in determining whether it is a "motor vehi cle" within the meaning of the statute. As the above-quoted portion of the February 4, 1969, interpretation states, however, the operating capability test is not reached if there is "clear evidence that as a practical matter the vehicle is not being used on the public streets, roads, or highways." In the case of self-propelled riding mowers, golf carts, and many other similar self-propelled vehicles, such clear evidence exists.

It is clear from the definition of "motor vehicle" in section 102(3) of the Act* that the purpose for which a vehicle is manufactured is a basic factor in determining whether it was "manufactured primarily or use on the public streets, roads, and highway s." However, this does n ot mean that the proper classification of a particular vehicle is wholly dependent on the manufacturer's subjective state of mind. Instead, the Administrator intends to invoke the familiar principle that the purpose for which an act, such as the p roduction of a vehicle, is undertaken may be discerned from the actor's conduct in the light of the surrounding circumstances. Thus, if a vehicle is operationally capable of being used on public thoroughfares, and if in fact, a substantial proportion of the consuming public actually uses in that way, it is a "motor vehicle" without regard to the manufacturer's intent, however manifested. In such a case, it would be incumbent upon a manufacturer of such a vehicle either to alter the vehicle's design, con figuration, and equipment to render it unsuitable for on-road user or, by compliance with applicable motor vehicle safety standards, to render the vehicle safe for use on public streets, roads, and highways.

In borderline cases, other factors must also be considered. Perhaps the most important of these is whether state and local laws permit the vehicle in question to be used and registered for use on public highways. The nature of the manufacturer's promotio nal and marketing activities is also evidence of the use for which the vehicle is manufactured. Some relevant aspects of those activities are: (1) Whether the vehicle is advertised for on-road use or whether the manufacturer represents to the public that the vehicle is not for use on public roads; (2) whether the vehicle is sold through retail outlets that also deal in conventional motor vehicles; and (3) whether the manufacturer affixes a label warning owners of the vehicle not to use it for travel ove r public roads.

Interpretation ID: nht87-1.16